INTERNATIONAL LAW STUDIES
Volume 71
Library of Congress Cataloging-in-Publication Data
The law of armed conflict : into the next millenium / Michael N.
Schmitt & Leslie C. Green, editors.
p. cm. — (International law studies ; v. 71)
Includes index.
1. War (International law) 2. War victim — Legal status, laws,
etc. I. Schmitt, Michael N., 1956~ II. Green, L. C. (Leslie C),
1920-.
III. Series.
KZ6355.L39 1998 98-19204
341.6— dc21 CIP
INTERNATIONAL LAW STUDIES
Volume 71
The Law of Armed Conflict:
Into the Next Millennium
Michael N. Schmitt & Leslie C. Green
Editors
Naval War College
Newport, Rhode Island
1998
IN MEMORIAM
This book is dedicated to the memory of Professor W. Thomas
Mallison — shipmate, scholar, patriot, and friend.
Contents
Page
Foreword
Rear Admiral James R. Stark xi
Introduction
Michael N. Schmitt
Leslie C. Green xii
Rear Admiral Charles H. Stockton, the Naval War College,
and the Law of Naval Warfare
John Hattendorf xvii
I. Megatrends in the Use of Force
Anthony D'Amato 1
II. The Universality Principle and War Crimes
Yoram Dinstein 17
III . Implementation of International Humanitarian Law
in Future Wars
Louise Doswald-Beck 39
IV. The Development of the Law of Armed Conflict through the
Jurisprudence of the International Criminal Tribunal
for the Former Yugoslavia
William Fenrick 77
V. The Role of Individuals in International Humanitarian Law
and Challenges for States in Its Development
Dieter Fleck 119
VI . What Is— Why Is There— the Law of War?
Leslie Green 141
VII. The Law of Weaponry at the Start of the New Millennium
Christopher Greenwood 185
VIII. Nongovernmental Organizations in Situations of Conflict:
The Negotiation of Change
Franchise Hampson 233
IX. The Law of Naval Warfare and International Straits
Wolff Heintschel von Heinegg 263
X. Some Thoughts on Ideas That Gave Rise to International
Humanitarian Law
Geza Herczegh 293
XI. An Optimist Looks at the Law of War
in the Twenty-First Century
Howard Levie 311
XII. War Crimes Law for the Twenty -First Century
Theodor Meron 325
XIII. Nongovernmental Organizations and
International Humanitarian Law
VedNanda 337
XIV. Implementation of the Laws of War
in Late-Twentieth-Century Conflicts
Adam Roberts 359
XV. Bellum Americanum: The U.S. View of
Twenty -First-Century War and Its Possible Implications
for the Law of Armed Conflict
Michael Schmitt 389
XVI. The Development of International Law
with Respect to the Law Enforcement Roles of Navies
and Coast Guards in Peacetime
Ivan Shearer 429
XVII . The Law of Economic Sane tions
Paul Szasz 455
XVIII. The International Criminal Tribunal and Subpoenas
for State Documents
Ruth Wedgwood 483
XIX. Military Activities on the High Seas:
What Are the Impacts of the
U.N. Convention on the Law of the Sea?
RudigerWolfrum 501
Contributors 515
Index 521
Foreword
The International Law Studies series was initiated by the Naval War College to
publish essays, treatises, and articles that contribute to the broader understanding
of international law. With this volume we recognize Rear Admiral Charles H.
Stockton, on the 100th anniversary of his assumption of duties as the President of
the Naval War College, for his contributions to the study of international law at
the College, and his influence on the development of the law of naval warfare.
Indeed, Admiral Stockton is largely responsible for this series, which has become
known as the "Blue Books."
As the 20th Century draws to a close, it is particularly fitting to look into the
future to examine how the law of armed conflict, and the international
community's effort to effectively enforce adherence to it, may develop in the next
millennium. Over the past century, the changes in this body of law have been
dramatic. From a law based largely on custom and practice, and primarily focused
on basic humanitarian protections for combatants and noncombatants, today the
law is increasingly based on conventions addressing the means and methods of war.
Yet as significant as these changes have been, those in the nature of conflict and
the manner in which war is conducted have been even greater. Low-intensity
conflict within nations has become increasingly frequent over the last half of the
century. Accelerating technological advances have made possible weapons with
capabilities that have fundamentally altered the manner in which wars are fought.
Even space looms as a potential battlefield. It has been and continues to be a
challenge to adapt the law to what has appropriately been described as a revolution
in military affairs.
This volume consists of articles written by some of the world's most highly
regarded experts on the law of armed conflict. While the opinions expressed are
those of the individual authors, and not necessarily those of the United States
Navy or the Naval War College, they collectively provide valuable insights into
possible developments in the law regulating armed conflict, and how that law will
be enforced. On behalf of the Secretary of the Navy, the Chief of Naval
Operations, and the Commandant of the Marine Corps, I extend to the editors and
the contributing authors our gratitude and thanks.
JAMES R. STARK
Rear Admiral, U.S. Navy
President, Naval War College
Charles H. Stockton
Introduction
One century ago, Commander Charles H. Stockton assumed the Presidency
of the United States Naval War College. Although not a lawyer, his
appointment heralded an important milestone in the development of
international law, particularly the law of armed conflict, during the 20th
Century. For instance, in 1890 he prepared the U.S. Navy's first Naval War
Code, The Law and Usages of War at Sea. Issued the following year as General
Order 551, this work is fairly characterized as the naval equivalent of the Lieber
Code. Stockton was also primarily responsible for the tradition of bringing
renowned international law scholars to the War College, including Brown's
George Grafton Wilson and Columbia's John Bassett Moore. Convinced of the
need to "link the college with the universities of the country and place the
service in greater sympathy with our more thoughtful men," Stockton also
maintained close working relationships with many other luminaries of
academia, such as Thomas Woolsey of Yale.
Following his tenure as President, Stockton went on to command the
battleship USS Kentucky, serve as the U.S. Naval Attache in London, and
achieve the rank of Rear Admiral before retiring in 1907. Despite retirement
from active service, Stockton continued his efforts in international law. An
original member of the American Society of International Law, he addressed
its first annual meeting in 1907, became a frequent contributor to the
American Journal of International Law, and served on its Executive Committee
until 1924. In 1908 Stockton led the U.S. delegation to the London
Conference, which was tasked with drafting a code of naval warfare. The
Conference eventually produced the Declaration of London of 1909.
Although never ratified by any country, the Declaration has been applied in a
number of conflicts and continues to influence the practice of naval warfare
even today.
Stockton received his first law degree in 1909, an honorary doctorate from
George Washington University. He was soon thereafter appointed to the
faculty of the University, where he wrote two of his most influential works,
Manual of International Law for the Use of Naval Officers and Outlines of
International Law. Stockton was appointed President of George Washington
University in 1910; today Stockton Hall houses its law school.
Two visible legacies of Admiral Stockton's influence remain at the Naval
War College. First, since 1951 his vision of hosting recognized scholars of
international law has been reborn in the form of the Stockton Chair of
International Law. Holders have included, inter alia, Manley Hudson, Hans
Kelsen, Richard Lillich, Howard Levie and Robert Turner. Their presence has
added a dimension of inquiry into international legal problems unavailable at
any other such institution in the world. Second, the War College's
International Law Studies series (colloquially known as the "Blue Books")
continues a tradition of War College publication in international law that
began during the Stockton era. Indeed, the third Blue Book was written by
Stockton himself in 1899, and the first numbered volume was authored by
Stockton's friend, John Basse tt Moore. Since then, over seventy of the volumes
have been published.
In light of these legacies, it is particularly apropos that the centenary of the
Stockton presidency be commemorated with a Blue Book consisting of
contributions by an internationally distinguished group of scholars.
Moreover, much as Stockton's work reflected on the state of the law of
military operations at the turn of a new century, it is a propitious moment in
history to reflect on the direction this corpus of jurisprudence is likely to take
as we enter a new millennium — thus, The Law of Armed Conflict: Into the Next
Millennium.
As editors, we took a rather unorthodox approach to our task. Most edited
works are developed thematically. An editor develops a theme, fleshes it out
into sub-topics, and seeks experts to comment thereon. By this method, we
would have selected topics which we (perhaps presumptuously) anticipated to
likely be of normative significance in the future and parse them out to
contributors. However, our purpose was not to peer into the future as we saw it,
but rather to gather a distinguished, provocative, and insightful group and
provide them an unconstrained forum in which to reflect on the future as they
perceived it. Thus, we were less editors than we were facilitators of the essays
contained in this book. Though we did at times suggest topics to certain of our
contributors, we only did so because of our sense that they might have
something particularly fascinating to say on the subjects. Some wrote on
entirely different topics, and that was fine because in great part we were
interested not only in what contributors had to say, but also in what issue they
chose to comment on at this point in history.
The result is a collection of insightful essays which are analytical, predictive,
and aspirational in nature. Moreover, while some of the authors took a macro
approach towards evolution (revolution?) of the law, others elected to examine
a micro issue which they believed to be particularly significant for the next
millennium. Interestingly, though a number of contributors highlight common
features of tomorrow's normative environment — such as the role of non-State
actors and the effect of next generation weaponry — the only thread that
xiv
consistently seems to run through most of the essays is that of implementation
of the law of armed conflict by way of effective enforcement measures. The
calls for new law are rather muted; instead, the emphasis of most contributors is
on rendering the existing prescriptive architecture effective. This diversity was
as we had hoped, for our intent was to produce a work that caused others to
think beyond the present, to reflect on where, as a global normative
community, we might — and should — be headed.
In the production of any such work, there are many friends and colleagues
to thank. Obviously, we are most grateful to the distinguished group of
scholars who gave of their time and thoughts to make this book possible.
Working with each and every one of them has been an absolute pleasure. At
the Naval War College's Center for Naval Warfare Studies, Dean Robert
Wood and Captain Dan Brennock were, as always, extraordinarily supportive
of the project, both financially and substantively. So, too, was Colonel
"Buck" Buckwalter, the Senior Air Force Adviser at the Naval War College.
Dean Barbara Safriet of Yale Law School graciously extended the offer to host
Lieutenant Colonel Schmitt as a Visiting Scholar for the year during which
the book was developed, thereby making possible editing in an intellectually
rich environment. We also extend our gratitude to two of our colleagues in
the War College's Oceans Law and Policy Department — Professor Jack
Grunawalt and Colonel Lou Reyna — who selflessly devoted themselves to
the often thankless task of proofreading. Further, we are grateful to Captain
Ralph Thomas and Lieutenant Colonel James Duncan, the unsung heroes of
the International Law Studies series. They are the ones who make the series
work, from design to publication to distribution. We were also most fortunate
to have had the superb support of two naval reservists, Lieutenant
Commanders Sarah Supnick and Tom Wingfield, who during critical periods
in the production of the book served as editors while we were away. But for
their hard work, the project would have been delayed many months. We owe
a special debt of gratitude to Mr. Pel Boyer of the Naval War College Press for
making his editorial expertise available to us throughout the project. We are
also grateful to Ms. Carole Boiani and Ms. Gina Vieira of the War College's
Publications and Printing Division. They managed the herculean task of
pulling together manuscripts prepared in disparate styles and with sundry
software from around the world, and then suffered a sea of revisions, with
unflappable grace and good humor. Finally, as anyone who has ever taken on
such a project surely realizes, in the end it is the family which suffers as the
best laid plans become rushed deadlines and missed dinners. Therefore, it is
xv
to Lilian, Lorraine, and Danielle that we owe our most heartfelt expression of
gratitude.
By the time this book is published, both of us will have departed the Naval
War College for other venues. Our time here has been enjoyable, beneficial,
and productive — we cannot imagine how it could have been improved. As we
leave, it is our hope that those who come here to consider international law in
the next one hundred years find it to be the fertile intellectual environment
that it has been over the past century.
Michael N. Schmitt, Lt Col, USAF Leslie C. Green, CM., LL.B., LL.D., F.R.S.C.
Professor of Law Stockton Professor of International Law
United States Air Force Academy Naval War College
xvi
Rear Admiral Charles H* Stockton,
the Naval War College,
and the Law of Naval Warfare
John Hattendorf
INCE ITS FOUNDING IN 1884, the U.S. Naval War College has played a
role in the study and formulation of the law of armed conflict. Many
distinguished scholars and lawyers have taught, researched, and written studies
in this field at the College. The roll call of its professors of international law
includes such distinguished scholars as John Bassett Moore, George Grafton
Wilson, Manley O. Hudson, Hans Kelsen, Thomas Mallison, and Howard
Levie.
Many of the most well-known names are those of scholars who held the
position as a part-time appointment and worked at the Naval War College for a
few months each year, while also holding chairs at major civilian universities.
This policy changed only in July 1951, when the Secretary of the Navy created
the College's first two full-time civilian academic appointments: a professor of
history and a professor of international law. For many years both were normally
held by visiting scholars for a one or two-year period. On 6 October 1967 the
College named the law position the Charles H. Stockton Chair of International
Law. 1 In attaching the name of Stockton to one of its oldest and most
prestigious academic chairs, the Naval War College remembered a naval
officer who was a key figure in its own institutional history as well as an
important figure in the development of the law of naval warfare. Today, the
prestigious Stockton Chair at the Naval War College, and Stockton Hall, the
home of the Law School at The George Washington University in
Stockton, the War College and the Law
Washington, D.C., are the principal tokens of his memory and his
achievements.
Looking behind those names, one finds that the man, Charles Stockton, had
an extremely successful forty-six-year career as a naval officer, ashore and
afloat. In some respects he was a person of remarkable contrasts. A man with
strong ethical and religious beliefs, he was largely self-taught in the area of
international law, but through his active service at sea he became fully aware of
the need for his fellow officers to understand the practical applications of law in
their daily responsibilities. A quiet and studious person, he nevertheless loved
active duty at sea. Deeply interested in naval history and strategy, as well as an
advocate of preparedness and a strong navy, he was devoted to developing an
international consensus and public awareness of legal restraints on warfare.
Among all his many activities, Stockton's contributions to the development of
the law o{ naval warfare stand as his most important achievement. They are
among the foundations upon which future work in the law o( armed conflict
rests.
Early Life
International law only gradually entered Stockton's life as he pursued his
career. 2 Setting out to be a naval officer, he eventually found that his family
background, early education, and his experiences at sea as a naval officer had
laid a firm foundation for his interest in the subject as well as the basis of his
outlook as to its practical application. In addition, his repeated assignments to
the Naval War College provided him with his first opportunities to study
international law in depth and to make an original contribution to it.
Exemplifying the broader development of international law within the United
States during the late nineteenth and early twentieth centuries, Stockton's life
reflects how one individual developed an interest in the subject, an interest
arising from his own fundamental religious and moral beliefs, as well as from his
perceptions as a naval officer during the rise of the United States as a world
power.
Charles Herbert Stockton was born in Philadelphia, Pennsylvania, on
October 13, 1845, the second child and eldest son of thirteen children. His
parents were William Rodgers Stockton, of an old New Jersey family, and
Emma Trout Gross, the daughter of Gottlieb Gross, who had immigrated from
Wurttemberg in about 1810. Bearing the name of Charles' grandfather o(
Burlington County, New Jersey, that side of the family was well known for
literary accomplishments. Among them were the writer Louise Stockton, the
xviii
John Hattendorf
journalist John D. Stockton, the novelist Frank R. Stockton, and the Rev.
Thomas H. Stockton, a celebrated ecclesiastical orator and the chaplain of the
House of Representatives, whose prayer accompanied Lincoln's Gettysburg
Address at the dedication of the battlefield cemetery in 1863.
When Charles Stockton was born, his father was operating a real estate
business in a triangular-shaped building at the corner of Ridge Avenue, 11th
Avenue, and Buttonwood Street in Philadelphia. The family occupied the
upper floors of the building, while the father operated his business on the
ground floor. Following a successful business career, during which he was
prominent in city affairs, Stockton's father began to study for the ministry. He
was ordained a deacon in the Episcopal Church in 1858 and a priest in 1859.
The family moved to Evansburg, Pennsylvania, in 1858, when Stockton's
father was appointed rector of St. James's Church there as well as of St. Peter's
Church in nearby Phoenixville in Montgomery County, the site of an iron
works. In those years, the young Stockton grew up as "a gentleman's son;" his
family was well off, and he naturally associated with boys from other cultivated
families. For a time young Stockton attended the Germantown Academy,
where his classmates were children of well-to-do families. There, he joined
them in playing cricket and "town-ball," the forerunner of baseball.
On the Evansburg parish's two-hundred-acre glebe farm, family life in the
period from 1858 to 1861 had a great affect on young Stockton. He particularly
enjoyed the active, rural life of Montgomery County, with its Pennsylvania
Dutch population and their idiomatic use of English mixed with German
expressions. In addition to the moral influences of his family and from the
various religious communities of that region, he was deeply impressed with the
idea of community, of joining a variety of different types of people. Interested in
politics from an early age, the fifteen year old Charles joined in the activities of
the Wide Awake Club, participating in its election marches in 1860 to support
Abraham Lincoln for president and William Morris Davis for representative
from Pennsylvania's fifth congressional district.
When the Civil War broke out soon after Lincoln's inauguration, there was
a widespread military spirit throughout the country, and like many other young
boys, the now sixteen-year-old Charles Stockton tried to enlist as a corporal in
the cavalry. Rev. Stockton, however, approached a number of people to
produce for his son a better opportunity. He wrote to his relative in
Washington, Rev. Thomas Stockton, the chaplain to Congress; Thomas,
however discouraged the military idea and argued that Charles should pursue
his education, preferably a religious one. "The more I see of war," Thomas
Stockton wrote, "the more I value peace. I can only tolerate war, as a sort of
xix
Stockton, the War College and the Law
Providential necessity. Surely God would never suffer it, except as a sad
instrument of some good accomplishment, hardly to be otherwise attained." 3
(It was a thought that Charles kept in mind, even at the end of his life, when he
recorded the note verbatim in a memoir of his early days.) Rev. William
Stockton, however, also wrote to his newly elected congressman, William
Davis, asking him to obtain an appointment to West Point. Davis, who had
been to sea as a young man in a whaling ship and later published memoirs of
those years, 4 suggested that young Stockton should try the Naval Academy,
where he had an appointment available.
First Years in the Navy
The Civil War had been going on for six months when Charles Stockton
entered the Navy on November 14, 1861. The three-month soldiers who had
enlisted at the outset of the war had already been discharged, and the call was
out for volunteers to serve three-year terms. The Naval Academy had moved
to Newport, Rhode Island, for its security, since a large proportion of the border
state of Maryland was disaffected toward the Union. After Charles took and
passed the entrance examination for the Naval Academy, his father returned
to Pennsylvania and resigned from one of his two churches, St. James's Church,
and moved to take charge full-time oi St. Peter's at Phoenixville. Charles's
parents lived there for the remainder of their lives. Phoenixville became home
to Charles on leaves oi absence from the Naval Academy and in later years
from service afloat.
At the Academy in Newport Stockton spent his plebe year on board the old
frigate USS Constitution, eventually moving to the school's main building in the
former Atlantic House Hotel. With no previous connections with the sea or
with naval officers, the impressionistic teenager long remembered his first sight
and sound of Newport harbor. Among his vivid memories were the profound
silence of the early dawn in the harbor and on the Bay. "At times large clipper
ships anchored to await favorable winds," he later wrote, "and often in the early
morning they would get underway with the land breeze and stand out of the
harbor. I heard from them for the first time in weighing anchor the shanty songs
of the sea, with the refrain made by the clank-clank of the windlass." 5 Stockton
received his first seamanship instruction at the Academy on board the USS
Marion, commanded by Lieutenant Commander Stephen B. Luce, with whom
he would later have additional connections. Under Luce's skillful direction,
Marion became a very successful practice vessel for midshipmen, who sailed it
the length and breadth of Narragansett Bay.
xx
John Hattendorf
The Civil War had an immediate effect on the Stockton family. No sooner
had Charles joined the Navy than his father took a leave of absence from his
parish to be chaplain of the 61st regiment o{ Pennsylvania Volunteers.
Captured by Confederate forces under Major General D. H. Hill at the Battle
of Fair Oaks during the Virginia Peninsular campaign in 1862, Chaplain
Stockton was first sent to Libby prison and then to Salisbury, North Carolina,
where he was eventually released with several other chaplains and doctors.
Upon his release he returned to his parish work in Phoenixville.
Naval Academy midshipmen were given summer leave in 1863, and
Stockton returned home to Phoenixville, just before the Confederate Army of
Northern Virginia under Robert E. Lee invaded southern Pennsylvania.
Stockton once again attempted to join the Army and to assist in defending his
state. His attempt was, he later recalled, "without success, as I was a
midshipman, neither fish, flesh or fowl or, as the Cape Cod men say, good red
herring."^ Disappointed, Stockton did not see action at Gettysburg or
elsewhere. In the autumn he returned to his studies at the Naval Academy in
Newport. There he did poorly in both pure and applied mathematics but
maintained a high standard in ethics, English, and international law, a subject
he first met during his final year at Newport.
At that time, there was no suitable textbook available to the U.S. Navy for
studying international law. The most authoritative American work was Henry
Wheaton's Elements of International Law, first published in 1836. Wheaton had
been dead for a dozen years, and several editors had revised and updated his
book. In 1865, two competing eighth editions were on the market. The first, by
the Boston lawyer and author of Two Years before the Mast, Richard Henry
Dana, had appeared in 1863. In 1865 William Beach Lawrence, a well-known
writer living in Newport, published another eighth edition, claiming that the
Wheaton family had given him the sole right o( revision.
During his Naval Academy years Stockton called on Lawrence, a relative of
his Academy roommate, Beach Carter, at his beautiful home in Newport's
Ochre Point district. The former American diplomat and onetime lieutenant
governor of Rhode Island impressed Stockton as an exceptionally learned but a
very contentious man, one who seemed to seek and enjoy litigation. The Naval
Academy found itself in a difficult position, since Lawrence, living in the same
town, contested the Academy's use of Dana's version. Actually, officials at
both the Naval Academy in Newport and at the Navy Department in
Washington preferred Dana's work to Lawrence's, taking exception to some of
Lawrence's views on U.S. policy during the Civil War. (On later reflection,
Stockton himself felt that Dana's edition was far superior to Lawrence's, feeling
xxi
Stockton, the War College and the Law
that Dana's notes on recognition of belligerency and independence remained
classics on the subject.) Lawrence took his case to court, which decided the
issue in his favor, preventing Dana's edition from being published in the United
States (although it was printed and sold in Britain). Since the Navy would not
allow the use of Lawrence's version, the Academy fell back on two general
works, Theodore Woolsey's International Law and Chancellor Kent's Lectures.
Neither of these authors dealt with the subject in the practical and thorough
way necessary to meet the needs of naval officers.
Assignments at Sea and Ashore
Like most of his fellow midshipmen, Stockton was deeply disappointed not
to have been able to take an active part in the naval actions o( the Civil War.
Doing that had been the very reason to join the Navy in the first place. To a
young man like Stockton, thirsting for action, it was of little consequence to
have served as part of the midshipmen garrison of Fort Adams, guarding the
entrance to Narragansett Bay, or serving in the Naval Academy's practice
vessels when they had been placed on alert for possible raids from the
Confederate raiders they never sighted: Fbrida, Tacony, and Tallahassee.
Nevertheless, such service was enough to qualify Stockton and his classmates
in the Naval Academy class of 1865 to wear the Civil War medal, to give them
all the retirement benefits from that war, and make them eligible to be original
members of the Military Order of the Loyal Legion.
In the summer of 1865 the Naval Academy was ordered to return to its
original home in Annapolis, Maryland, despite protests from Rhode Islanders,
who wanted it to stay in Newport. Stockton was on USS Marian when she was
towed from Gardiner's Bay off Long Island to the mouth of the Pawtuxet River
in Chesapeake Bay, where the midshipmen briefly went ashore. There they
found a variety of fresh fruits, fish, oysters, and game for the taking, things that
the wartime economy of New England had denied them, luxuries that now
seemed food for the gods. The event proved more than an escapade to
Stockton, who apparently contracted malaria during that run ashore. The ship
proceeded to Annapolis, and Stockton transferred to the steamer Winnipec, his
quarters for the remainder of his days at the Naval Academy. After passing
final examinations, the Academy class of 1865 was graduated at the end of
September, and Stockton returned to Phoenixville to await orders to sea duty.
Within a fortnight the Navy Department ordered Stockton to the steam
sloop USS Dacotah, where he was joined by four Academy classmates. During
his first three months on board Dacotah he had two bouts of malaria. The Navy
xxii
John Hattendorf
Department placed Stockton on sick leave, and then on limited duty.
Returning to full seagoing service some months later, he first served in the USS
Sabine, where the commanding officer attested to the "fine bearing and
intelligence" of Stockton, "a young officer full of promise." 7 From there he was
ordered in May 1866 to join the commissioning crew of the screw steamer USS
Chattanooga. Built at Cramp's shipyard in Philadelphia, she was a long wooden
vessel designed during the war to pursue and capture Confederate raiders, but
her experimental direct-acting engines gave difficulties. In the midst of trials,
in which the ship failed to live up to expectations, an epidemic o( what
appeared to be cholera broke out among the crew, and the Navy permanently
laid her up.
After that inauspicious beginning, Stockton transferred to the USS
Mohican, then being repaired at Boston and a sister ship o{ his first ship, the
Dacotah. Stockton remained onboard Mohican for nearly three years. Upon her
recommissioning after the yard period, the ship sailed for duty on the Pacific
Station in September 1866, stopping enroute at St. Thomas in the Virgin
Islands, several ports in Brazil, Montevideo, and then passing through the Cape
Horn inside passage to Valparaiso, joining the Pacific Squadron at Callao,
Peru, in April 1867.
Stopping at the island of Maranhao on the northern coast of Brazil to coal
ship, Stockton witnessed his first practical situation in international law, in a
case that he later used at the Naval War College to illustrate the need for naval
officers to include international law in their daily professional knowledge. One
of the ship's boats, under the charge of Midshipman George Talcott, was lying
alongside a stone jetty waiting for orders. Bored, several oi the boat's crew
jumped off the boat and ran into town. Talcott pursued and fired a revolver at
them in an open, crowded street. The local authorities quickly arrested Talcott
for violating the law and held him at the police station. The commanding
officer of the Mohican, Commander Edward Simpson, disregarding the legal
issues, demanded that local authorities immediately release Talcott and
threatened to bombard the city if they refused to comply. When news q{ this
reached the Brazilian capital, the U.S. ambassador, Watson Webb,
immediately requested that the Navy Department relieve Simpson for his
high-handed conduct. In the end, the affair quieted down; municipal officials
returned Talcott to his ship, and Mohican proceeded on her passage to the
Pacific without further diplomatic delay. Stockton, however, never forgot the
incident.
From the rendezvous at Callao, Mohican sailed to Acapulco and, eventually,
San Francisco. Stockton's ship was homeported there and assigned to the
xxiii
Stockton, the War College and the Law
newly established North Pacific Station, which stretched as far north as the
mouth of the Mackenzie River on the Arctic Ocean. Stockton particularly
enjoyed California, which in the days following the Gold Rush had become a
haven for many who were trying to recover fortunes lost during the Civil War.
Stockton made a number of close friends, enjoying the cultivated social life
that these permanent residents had created.
When the Mohican was decommissioned and went into repairs at the Mare
Island Naval Shipyard, Stockton and his fellow officers were transferred to the
iron-hulled, steam gunboat Mohongo. Stockton was on board the ship during a
seven-month diplomatic mission to the Kingdom o{ Hawaii, during which she
received on board King Kamehameha V, Dowager Queen Emma, the
American minister, charge d'affairs, and other officials. He closely observed the
practice of diplomacy in the overtures that Americans were making to the
Hawaiian government, as the ship cruised throughout the Hawaiian chain,
carrying officials, patrolling, and making hydrographic surveys.
Returning to San Francisco in April 1868, Mohongo received a new
commanding officer, Commander Stephen B. Luce under whom Stockton had
been trained in seamanship at the Naval Academy. Under Luce, Mohongo
cruised in the Gulf of California, visiting such Mexican ports as La Paz,
Mazatlan, Guayamas, Acapulco, and San Bias. During that cruise, one event
particularly stood out in Stockton's memory. Because commercial shipping was
both unreliable and irregular from Mexico, it was the practice for commanding
officers of both British and American warships to carry silver (a major Mexican
export) as freight, with a percentage given to the captain, the admiral, and the
naval pension fund. Mexican law allowed silver dollar coins to be exported, if a
tax were paid, but prohibited the export of silver bars. At Mazatlan the ship
received nonetheless both bags of silver dollars and quantities of silver bars for
shipment to banks in San Francisco. Stockton recalled, "A canoe laden with
bars of silver would steal alongside and a loud whisper of 'plata' was heard and
then a treasure net duly buoyed and lowered and the silver hoisted on board
and stowed in the storerooms of the cabin of the Captain." It was, he thought
"an unsatisfactory and not a dignified proceeding." 8
Detached from Mohongo when the ship was laid up for extensive repairs,
Stockton and his fellow officers moved their quarters to the receiving ship
Vanderbilty ostensibly assigned to the USS Ossipee. The Navy Department soon
ordered Stockton to return to the East Coast by rail. He traveled in a party that
happened to include William B. Ogden, the president of the Chicago and
Northwestern Railroad, and his family, enjoying their conversation and joining
xxiv
John Hattendorf
them with the picnic-basket dinners that a San Francisco Hotel provided,
including "an excellent red wine for the sandy deserts of Nevada and Utah." 9
Returning home to Phoenixville, Stockton soon received orders to the
Philadelphia Navy Yard, where he served for only a few months before being
ordered to sea again. Joining the screw sloop USS Congress on her first voyage,
he remained as a watch officer for four years, the longest service he spent in any
one vessel during his career. On her first deployment she was the flagship of
Commodore Joseph F. Green, commanding the South Atlantic Squadron,
based at Key West.
Stockton was in Southern waters when the Franco-Prussian War broke out
and the German gunboat SMS Meteor, under Lieutenant-Commander Eduard
von Knorr, engaged the French corvette Bouvet off Havana in an indecisive
action on November 9, 1870. The German ship remained in that neutral
harbor for the rest of the war. Shortly after returning to Key West, Congress
sailed to Santo Domingo, where the ship remained through the months in early
1870 during which President Ulysses S. Grant considered its annexation. The
ship carried the U.S. commissioners to various points in the country, providing
and supporting an armed party ashore to guard against insurgent attacks
against the government during the negotiations with the United States.
In 1871 Congress sailed for New York, where she served as flagship for Vice
Admiral Stephen Rowan to receive the Grand Duke Alexis and a squadron of
Russian ships. Following this formal diplomatic assignment the ship sailed to
Godhavn on the island of Disco, off western Greenland, taking supplies to the
USS Polaris, which Captain Charles F. Hall was preparing for exploration in the
Arctic. Returning south, Congress made a cruise to Haiti in early 1872 before
being ordered to join the Mediterranean Squadron. There Stockton observed
another telling situation in international law. When Rear Admiral James
Alden ordered the Congress to sail to Constantinople in the wake of
anti-Christian riots that threatened the lives of American missionaries, the
U.S. Minister, George Boker, found that the Ottoman government would not
allow the three-thousand-ton warship to enter the Dardanelles, because that
government's policy was to bar passage to all but small warships, under eight
hundred tons. Diplomatic negotiations had been going on over this issue for
years, but Admiral Alden was unaware that State Department authorization
was necessary before sending a warship to the Dardanelles. Completely
insensitive to international law, Alden's view was that he was under orders to
protect Americans and that since Constantinople was one place where rioting
was taking place, he would provide protection there. 10 Stockton clearly saw
that the issue was not that simple. For him, it was further personal experience
xxv
Stockton, the War College and the Law
of the need for naval officers to study and to understand the practical
applications of international law.
Detached from Congress, Stockton returned home on leave of absence until
October 1873, when he served at the Philadelphia Navy Yard and on board
USS Dictator before joining the commissioning crew of the USS Swatara, a new
ship being built at the New York Navy Yard (under the guise of "repairs" to an
older vessel of the same name). Upon her completion Swatara departed from
New York in June 1874 to take five scientific parties to the South Pacific for
observations of the transit of Venus, leaving them on Tasmania, Kerguelen
Island, New Zealand, Chatham Island, and Melbourne, Australia. Upon
completion of their work she collected her passengers and returned to New
York, via the Cape of Good Hope, in May 1875. n On this round-the-world
cruise, Stockton served as senior watch officer. His commanding officer later
reported to the secretary of the navy that he was "one of the most reliable,
trustworthy and gentlemanly officers in the service." 12
After detachment from the Swatara, Stockton returned home to marry
Cornelia Carter of New York on June 23, 1875, before moving with her to
Washington, D.C., where he had orders to spend the year 18754876 at the
Hydrographic Office. During this period his wife gave birth to a daughter 13 but
died in childbirth on July 1, 1876, just after Stockton had received orders. His
new assignment was the wooden-hulled screw steamer USS Plymouth,
operating on the Atlantic coast and in the Caribbean. Not aware of the
personal tragedy Stockton had experienced, one of the midshipmen
remembered Stockton as Plymouth's "navigator. Silent and scholarly, he kept
much to himself." 14 At the end of that tour of duty the commanding officer
reported that "in everything that goes to make an efficient naval officer, Mr.
Stockton excels." 15
In June 1879 Stockton reported for duty at the Navy Yard in New York,
where he served for a year. While in New York he met Pauline Lentilhon King,
a daughter of Peter Vandervoort King, and married her on November 23, 1880.
Detached from the Navy Yard in May 1880, he went first to Newport, Rhode
Island, where he took the course of instruction at the Naval Torpedo School on
Goat Island, and from there to the Washington Navy Yard.
The Navy Department next ordered Stockton to sea duty as executive
officer in USS Iroquois, a screw steamer which had just been re commissioned
after a long period of inactivity at Mare Island Shipyard in California. During
Stockton's assignment on board, the ship cruised widely on the Pacific Station,
ranging from ports in South America to Hawaii, Australia, and the Pacific
Islands. At the very end of Stockton's tour, the ship participated in the
xxvi
John Hattendorf
American intervention in Panama, where revolution had blocked the free
transit of the isthmus that had been guaranteed to the United States under a
treaty with Colombia. On March 26, 1885, the USS Galena landed a force at
Aspinwall, which was soon reinforced by units from Shenandoah, Swatara, and
Iroquois. A force of Marines under Lieutenant Colonel Charles Heywood and
sailors under Commander Bowman McCalla reopened the railway and
maintained order while Colombian troops quelled the rebellion. Stockton
landed with Iroquois' party. This personal experience of operations ashore
during a civil war led Stockton to examine more deeply the diplomatic and
international law issues surrounding naval intervention and American
interests in a transoceanic canal.
Upon his detachment from sea duty, Stockton spent several months on
leave in Phoenixville and then traveled to Washington, where he took up a
three -and -a-half -year assignment in the Bureau of Yards and Docks. During
this period he assumed a variety of duties and developed interests that stayed
with him for the remainder of his life. Coming as he did from a family with a
long-standing interest in charity and church work, he became a devout
member of St John's Episcopal Church on Lafayette Square. He was also a
member of the Board of Trustees of the Church Orphanage, and of the Board
of the Navy Mutual Aid Association. 16 In the light of this background, it is not
surprising that Stockton became particularly interested in one organization
that came under the purview of the Bureau of Yards and Docks: the
Philadelphia Naval Asylum, an early attempt to address the welfare of retired
and disabled seamen. His interest in this subject led to his first two
publications, a thirty-seven-page pamphlet on the study of the history,
management, and function of the organization, 17 and a short article in the
Naval Institute Proceedings on the Asylum's role in providing service pensions
to enlisted men. 18
Through this connection, he began to take an active role in the Naval
Institute and its activities. Expressing one of his interests in a discussion group
on the Prize Essay for 1887, he commented that there was a great need to bring
Navywide coordination to the many requirements for education and training
within the service. 19 Shortly afterwards, the Naval Institute asked him to be
one of the judges for its Prize Essay contest in 1888. 20 Through these activities
he quickly became known in the service as a writer and thinker, devoted to
furthering professional development in the Navy.
Among his official duties as a lieutenant commander in Washington during
the years 1885-1888 was serving on a board to examine naval drills and
exercises, on another to review and revise the naval signal book, on a third to
xxvii
Stockton, the War College and the Law
select the site for a new timber dry-dock at Norfolk, Virginia, as well as on the
board of examiners at the Naval Torpedo School. The dry-dock site-selection
experience resulted in his second contribution to the Naval Institute
Proceedings, an essay on the use of the Simpson method for constructing timber
dry-docks in the United States, from their introduction at Boston in 1853 to
the most recent one at St John's, Newfoundland, in 1884. 21
For his own career, certainly one o{ the most significant temporary
additional duty assignments was to be sent to the President of the Naval War
College, Captain A.T. Mahan, in response to Mahan's request for someone
from the Navy Department to lecture on "Commerce and Commercial Routes
between Europe and the Pacific." Returning to Newport in 1887 for his first
visit to the three-year-old Naval War College, Stockton spoke on the possible
effects that a trans-isthmian canal would have on this trade, along with a
survey of the political and military conditions in the Pacific, Gulf of Mexico,
and the Caribbean regions. His lecture was very well received. Mahan and
others at the College reported so enthusiastically about his performance that
Rear Admiral Luce, then commanding the North Atlantic Station, wrote
personally to commend Stockton for his "admirable lectures" and to ask him to
save his notes so that he could repeat the performance in the following
academic year. 22 With Luce's assistance, Stockton was able to improve his
lectures further by obtaining the latest reports on facilities in the Caribbean
and the Gulf. 23 Building on his own earlier experience in the USS Iroquois at
Panama in 1885, Stockton produced a body of research on this subject to which
he repeatedly returned in later lectures and writings; the historical, strategic,
and commercial aspects of the Pacific and Central America became a subject of
special study. He soon became known within the service as one of the Navy's
foremost authorities on the Canal and the Caribbean area. 24
Returning to Washington, Stockton resumed his duties with the Bureau o(
Yards and Docks. After serving on a board to consider costs for dry-docks at
Brooklyn, New York, and Portsmouth, Virginia, he was assigned in November
1888 to a board established to find an appropriate site for a navy yard in Oregon
or in the territories of Washington or Alaska. Stockton was the junior member
of the three -officer commission, which included Commander Colby M.
Chester and Captain Mahan, who was temporarily detached from the Naval
War College to serve as its head.
Mahan, Stockton, and Colby traveled first to San Francisco and then north
to Portland, the Columbia River, and Seattle to examine possible sites.
Considering all the strategic and logistical issues involved for a naval base that
would defend American territory above forty-two degrees north latitude, the
xxviii
John Hattendorf
three commission members obtained the cooperation of a Coast Survey vessel
to view, compare, and contrast a variety of possible sites. After careful
consideration, they selected Point Turner — the site of the future Puget Sound
Navy Yard. 25
Command at Sea
Toward the end of March 1899, just as the commission was completing its
work, the Chief of the Bureau of Navigation telegraphed Stockton, "How soon
could you take command of the Thetis and would you like that command?" At
the time, the Scots-built former steam whaling ship was completing a
five-month yard period at the Mare Island Naval Ship Yard, and her
commanding officer, Lieutenant Commander William H. Emory, had orders to
London as naval attache. Accepting the offer immediately, Stockton reported
that the commission had nearly completed its work and that he could report on
board within a few weeks. Soon after Stockton arrived, a telegram arrived
reporting that Emory's orders might be canceled and asking whether Stockton
would swap orders and take the USS Pinta, while Emory returned to Thetis. It
was a chance that Stockton would not take, and he refused the offer. 26 On
April 20, 1889, Thetis sailed out oi San Francisco Bay with Stockton in
command, to perform surveys in Alaskan waters and to protect American
commercial and whaling interests in the Bering Sea and Arctic Ocean.
Later in 1889 Thetis called at several Eskimo villages. Deeply moved by his
encounters with the native peoples of the North, Stockton recorded in his
journal an episode of a visit to Cape Prince o( Wales that reflected a
contemporary outlook: "During the morning I had a conference with some [of]
the leading natives. . . . Told them what I wanted to communicate . . . that they
had a bad reputation, and that if they maltreated white men they would be
punished, but if they treated white people who were ship-wrecked properly
they would be rewarded." 27 Appalled by the social conditions there and
elsewhere in Alaska, he commented, "What a Pity nothing is done for the
elevation of these people." 28 In particular, he became interested in the Eskimo
village of Tigara, near Cape Hope on the Bering Sea. "Although under the flag
of the United States," Stockton wrote in describing this place, "there was
nothing but chaos and paganism." 29 Acting on his reports, the Navy
Department ordered Stockton to establish a house of refuge at Port Barrow. In
connection with this duty Stockton wrote to the Board o{ Missions of the
National Council of the Episcopal Church, urgently recommending that they
send a missionary to the area. The Board of Missions was so impressed by
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Stockton, the War College and the Law
Stocktons direct plea that they immediately sent out Dr John B. Driggs, who
would distinguish himself by many years of missionary service at Cape Hope. 30
In another initiative, Stockton arranged for the U.S. Department of the
Interior's Bureau of Education to circulate fifty copies oi printed Eskimo
language vocabularies to missionary schools at Point Barrow, Point Hope, and
Cape Prince of Wales. 31 In the course of these activities Stockton became
deeply interested in the history of the region, and the Alaska Historical Society
elected him an honorary member. 32
Meanwhile, Stockton and his ship were also carrying out their primary
duties. One of the most important of these was oceanographic and
hydrographic survey work. On this cruise Thetis became the first U.S.
government vessel to reach Mackenzie Bay in Canada. She made the return
passage from Mackenzie Bay to Herald and Wrangel Islands in one season,
which had never before been done, and became the first vessel of any kind to
follow the entire coast of Alaska, from Port Tongass in the extreme southeast
to Demarcation Point on the Arctic Ocean, the northern border between
Canadian and United States territory. 33 In the course of this cruise, the officers
of the Thetis made a careful examination of ice movements on the Bering Sea
and in the Arctic Basin. Their work earned them special praise from the
Hydrographer of the Navy, who in a circular letter to the entire Navy
distributing the published results, reported that Stockton and his officers had
greatly contributed to knowledge of the waters and coasts of northwestern
Alaska and that "the recent cruise of the Thetis has been remarkable as it has
been successful." 34
After her five month cruise Thetis returned to Mare Island for a repair period
before sailing to the Central American coast, still under Stockton's command.
Stockton prepared an article on the Arctic cruise for the new National
Geographic Magazine and another for The Overland Monthly, on the growth of
the new Navy. 35 In the latter article Stockton revealed his fundamental belief
in the need for a strong navy to maintain international law and to promote the
peaceful settlement of international issues. While the idea of transferring issues
of national dignity and self-preservation from the arena of war to courts of
justice appealed to him, he also saw how monopolies and arbitrary trusts had
used bribery and corruption to defend themselves in domestic courts.
"Arbitration is practiced between equals," he wrote; " a stronger power with a
wrong to redress or an aggressive policy to enforce will not stop for measures of
arbitration." 36
Meanwhile, a revolution had broken out in El Salvador; the government of
Francisco Menendez had been overthrown by the army commander, General
XXX
John Hattendorf
Carlos Erzeta. The revolutionaries had driven the forces of the government
into Guatemala, and war had broken out between the two countries.
Stocktons assignment was to cruise the coasts of Guatemala and El Salvador
and protect American interests from harm. In the course of this duty between
July and October 1890, Stockton and Thetis called several times at La Libertad
and Acajulta in El Salvador, at La Union and Ampala in Honduras, and at San
Jose in Guatemala. Praising Stockton's work, the American envoy in Central
America, Lansing Mizner, valued the ship's presence "in the critical juncture of
the [official] mediation on the part of our Diplomatic Corps to restore peace to
the hostile republics of Guatemala and Salvador." 37 Assistant Secretary of the
Navy James Soley forwarded to the Secretary of State his own praise for
Stockton's success in "obtaining redress from the government of Salvador for
the indignation offered to the U.S. flag in the capital oi that country." 38 Upon
returning from Central America for a repair period at the Mare Island Naval
Shipyard, Stockton received orders to report for shore duty at Newport, Rhode
Island.
The Naval War College
When Mahan had been detached on temporary duty from the Naval War
College in January 1889 to head the commission that selected the site for the
Puget Sound Navy Yard, those who favored technical training over the
education in political-military affairs being offered at the College had taken
advantage of his absence. For the moment, the Naval War College's strongest
and most effective supporters were all exiled. Mahan's departure for the distant
northwest coast came at the exact moment that the founder of the College,
Rear Admiral Stephen B. Luce, retired from active duty after serving as
commander in chief of the North Atlantic Squadron. In the last months of
President Grover Cleveland's administration, Secretary of the Navy William
C. Whitney ordered the Naval War College course shortened and
recommended to Congress that it be consolidated with the Naval Torpedo
School on Goat Island under the Bureau of Ordnance. Such an attempt to
subject the broad political-military interests of the College to the scientific and
technological concerns of submarine ordnance was clearly a plan to kill the
Naval War College. Its opponents could see no practical value in an
educational institution that focused so strongly on history, case studies, and
theory, encouraging its faculty and students in independent and creative
thought, and providing them large amounts of free time, without specific
assignments or detailed work plans, to undertake individual reading and
xxxi
Stockton, the War College and the Law
writing in broad areas of professional interest. Acting in effect to replace this
approach with the type of lectures used for basic technological training,
transmitting large amounts o( information through rote learning, the Navy
Department even moved the College from its original home on Coaster's
Harbor Island to nearby Goat Island, where the Torpedo Station was located.
To consolidate its position, the Navy Department persuaded the outgoing
Congress in its very last days in March 1889 to allocate $100,000 for a new,
purpose-built building on Goat Island for the joint use of the College and
Torpedo School. In the eyes of the Naval War College's supporters, this move
clearly spelled its end.
The orders were given and duly carried out. However, as chance would have
it, the ordnance officer in charge of the Torpedo Station, who would have been
expected to kill the College by amalgamating it into the Station's technical
work, happened instead to be an ally. He was not only a personal friend of
Admiral Luce's, but the very officer whom Luce had chosen five years before as
the junior member of the board that had created the Naval War College,
selected its original site, and established its first curriculum in 1884:
Commander Caspar Goodrich. As he recalled many years later, the College
"fell in friendly hands, and I made a point of honor of keeping it alive." 39 With a
good friend on the local level to maintain breath in the institution, Admiral
Luce turned his attention to the state and national level, working to gain
support for the College. In particular, he enlisted the strong support of Rhode
Island Senator Nelson Aldrich, while making appeals to key members of
President Benjamin Harrison's incoming administration.
Five days after Harrison's inauguration, the new Secretary of the Navy,
Benjamin F. Tracy, promised Aldrich his support. In his first annual report to
Congress, Secretary Tracy declared that further direction from Congress was
needed before construction began on the new Goat Island building. "The
present condition o( things," he wrote, "in which the college is made as sort of
an appendage to the Torpedo Station, under the Bureau of Ordnance, should
be corrected. It is attaching the greater to the less." 40
Because the situation for the College was unclear, the Navy Department
ordered no students or faculty to the College for the 1890 or 1891 academic
years. Goodrich remained nominally in charge while Luce and others worked
to reverse the previous administration's policy. In May 1890, as support for the
College grew, Mahan published his Naval War College lectures as The Influence
of Sea Power upon History, 1660-1783, bringing widespread attention to the
fruitfulness of the College's first years. Shortly thereafter, in June 1890,
Congress passed an important appropriation bill authorizing the Indiana class of
xxxii
John Hattendorf
battleships. At the same time, Congress took two additional steps that soon
had an important effect on the Naval War College. First, it authorized the
return of the College to Coaster's Harbor Island and the construction o{ the
new building there. Secondly, it revived the post of Assistant Secretary of the
Navy, a position that had lain dormant for the nearly thirty years since
Gustavus Fox left office after the Civil War, and it placed the College directly
under the Assistant Secretary. To fill this new position Secretary of the Navy
Tracy appointed James R. Soley, who had been the first civilian faculty member
at the Naval War College and, from 1885 to 1888, its first lecturer in
international law. In this key position, Soley became the College's most
important promoter and defender.
The Navy Department ordered Charles Stockton to supervise the
construction of the first new building for the Naval War College, under the
Commandant of the Naval Training Station, Captain F.M. Bunce. Reporting
for duty in August 1891, Lieutenant Commander Stockton was soon directed
to take charge of the entire War College Department and to transact all its
business. 41 Construction began on September 14, 1891, and was finished on
May 23, 1892. Upon completion of the building that (forty years later) would
be named Luce Hall, Stockton and his family became its first residents, moving
into quarters in the southeast corner of the building.
In February 1892 the Navy Department ordered Mahan to return as
President of the College, but he preferred to remain at his home in New York
City, where he could complete work on his next series of lectures that would
constitute his forthcoming book, The Influence of Sea Power upon the French
Revolution and Empire. Stockton remained in Newport in direct charge of the
College's affairs until Mahan returned in July 1892 to open formally the
academic year. Recalling the situation from his own point of view, Mahan
would later write in his reminiscences, "the College slumbered, and I
worked." 42 In fact, Mahan was largely oblivious to what was going on in
Newport, and Stockton carried out all the practical affairs of the College with
Mahan's blessing. While Mahan researched and wrote, Stockton oversaw
construction of the College building and handled all its numerous
administrative affairs. Continuing the close relationship they had developed
during the Puget Sound Commission, Mahan and Stockton worked very
effectively and cooperatively together. Thinking back on these years, one of
Stockton's daughters recalled that the two men made an odd sight
together — her father being "rather short and square, while Captain Mahan
loomed immeasurably tall and thin above him." 43
xxxiii
Stockton, the War College and the Law
In his opening address to the first group of students in the new building,
Mahan presented a carefully worked out defense of the College and its
educational approach. With the new battleships under construction, he
pointed out, broad theoretical and historical studies had concrete importance
now. "There is time yet for study; there is time to imbibe the experience of the
past," he said. "Use the time of preparation for preparation. ... To postpone
preparation to the time of action is not practical." 44 Handing the
administration over to Mahan, Stockton returned to being a lecturer, revising
and updating the lectures he had first given at the College in 1887 and 1888 on
the subjects of "Naval, Commercial, and Political Conditions existing in the
region affected by the [future] Inter-Oceanic Canal and the problems resulting
therefrom," and "The Strategic Features of the Pacific." 45 Due to the heavy
criticism the College had received and was continuing to receive, both Mahan
and Stockton were careful to keep the College lectures focused on specifically
naval affairs. They initially refrained from emphasizing the broader issues
which led into the full consideration of military affairs and international law.
While such matters were made clear during the War College course, the faculty
was cautious in the way it presented them at the College, knowing that the
campaign to save the College was not yet over.
In May 1893 Mahan departed from the Naval War College to take
command of the cruiser USS Chicago, leaving Stockton as acting President of
the College. Having been promoted to the grade of commander less than a year
before, he was — and still is, a century later — the most junior officer to ever
hold the position. Stockton immediately continued the work o{ Luce and
Mahan in defending the College. In an article for the Naval Institute
Proceedings Stockton outlined the full rationale for the College, following
Mahan's opening lecture a year before. Surveying the broad importance of
studying such subjects as strategy, tactics, and naval history, Stockton added,
"One of the most important of these specializations is that of international law,
taught with fullness nowhere else, and whose practical utility to the Navy is
daily demonstrated." 46
The struggle to reestablish the College had created bitterness within the
naval officer corps, and as a senior officer to take up its presidency Secretary
Tracy wanted someone who could forward its goals but lacked the stigma that
attached to its most strident supporters. He eventually settled on a Captain
Henry C. Taylor, who had lectured at the College in 1885 and who had served
at sea under Luce as commanding officer of the training ship USS Saratoga in
1880-1884. A widely respected officer, Taylor fully understood Luce's vision
for the College but was not associated with the recent political battle.
xxxiv
John Hattendorf
Becoming the new President oi the Naval War College in November 1893,
Captain Taylor made a number of innovative changes to the curriculum. All of
them stressed the traditional method of inductive reasoning, which the College
had employed in its teaching since its founding. In the area of international
law, the College invited Professor Freeman Snow of Harvard University to
deliver a series of twenty-two lectures during the 1894 course, to parallel the
students' consideration of hypothetical cases of naval warfare, and to be
published later as a manual for naval officers. Snow had been one of the
pioneers in the case method of teaching international law at Harvard Law
School. At that point there was no American textbook which used this
method, and Snow had begun to develop one. 47 He already had a connection
with the U.S. Navy, having lectured at the Naval Academy in Annapolis as
early as 1884.
In preparation for Snow's lectures Stockton laid out courses of reading in the
subject 48 and wrote him suggesting topics and approaches. Stockton remarked,
"These memoranda are based upon the experiences of naval officers graduated
from the Naval Academy after a brief and elementary course at the Naval
Academy, either of Kent or Wheaton, or in later days of Woolsey and Glass."
Obliquely referring to his own early experience, he continued, "A foreign
cruise is apt to follow after graduation and the cadet or ensign as boat officer
may readily blunder in international law by chasing deserters through a foreign
city, or using force in the streets to confine drunken seamen of his ship." 49
Providing five pages of examples, Stockton gave Snow a clear picture of the
types of issues and problems that a highly experienced naval officer often
encountered in international law. Stockton emphasized to Snow the need for
naval officers to understand the complicated interrelationship between naval,
diplomatic, and consular affairs, as well as their connections to larger political,
ethical, and moral questions. For instance, he pointed out, "questions
concerning missionaries constantly arise. What protection are they entitled
to — not as missionaries — but as Americans?" Again,
Suppose a servile insurrection or the rising of a class of coolies or laborers who are
degraded and savage. How and when does common humanity require action to
save lives of white men and their innocent families — masters, overseers and
employees? How justifiable is it and to what extent may be carried the landing of
a force to protect legations and consulates? 50
Drawing further on his own extensive experience, he asked, "What jurisdiction
has a man-of-war over the natives of northern Alaska — for the enforcement of
laws in localities, for the protection of traders and schools?" Nor did he forget
xxxv
Stockton, the War College and the Law
the law of warfare: bombardment of commercial towns in wartime, contraband,
neutrality, stoppage of breadstuffs and food supplies to a nation whose supply is
seaborne, telegraphic communications in wartime. "Besides broad outlines of
principles from which knowledge unexpected cases must be met, what I have
referred to above maybe considered an illustration of what would be needed in
a course of lectures before officers of experience and years." 51
For undertaking the series of lectures that Stockton outlined for him, the
Naval War College paid Snow a thousand dollars. However, just as he was
completing his course, Snow suddenly died. At the time, Stockton was giving
his own series of lectures on other topics at the College, repeating his lecture on
the Interoceanic Canal that he had given in 1887, 1888, and 1892. 52
Thereafter he developed a number of new themes: preparation for war,
contemporary French and British sea power, maps and charts for war,
combined maritime expeditions, and operations in the war oi 1812. Two
presentations, on commerce destroying and on sea blockade, touched on issues
of international law. 53 In addition to these wide-ranging lectures, Stockton
now arranged the first discussions on situations in international law; the
College published the result as a twelve -page pamphlet, including Stockton's
discussion of the situation. 54 Stockton's innovative work in creating and
publishing international law situations for naval officers to examine and to
consider eventually matured in 1901 as the International Law Studies ("Blue
Book") series, of which this volume is the seventy-first.
At the end of the 1894 course Stockton was assigned to special duty, to pick
up where Snow had left off, editing his work for publication and expanding on
it where needed. By the time the manuscript was completed at the end of 1894,
Stockton had written three-quarters of the book, but he modestly attributed it
to Snow. 55 When the Government Printing Office published the work in 1895,
it became the College's first book-length publication in the field of
international law. 56 In the preface, Stockton made a special acknowledgment
to Professor S.U. Macvane of Harvard for his assistance and suggestions in
arranging Snow's material. Thanking Stockton cordially for this generous
compliment, Macvane wrote to him, "You overstate my share in the matter,
however. I wish I had a small corner, somewhere between the covers, to tell
how completely the book is your own work." 57
In March 1895 Stockton completed a report for the Office of Naval
Intelligence on "Strategic Features of the Maritime Provinces of Canada with a
special view to naval or combined operations on the part of the US." 58 Later
that same year, Stockton gave his first full series of lectures on international
law, largely following the book he had just published. 59 In it Stockton, as he had
xxxvi
John Hattendorf
done in the previous year, set forth a series of international law situations,
posing specific cases for students to discuss and resolve. The proceedings of
these discussions, with notes by Stockton, were published as a small pamphlet
by the College in 1895 and distributed with the College's Abstract of the Course,
1895. 60
Return to Sea Duty
Detached from the Naval War College in July 1895 immediately after
completing his series of law lectures, Stockton took command of the
steel-hulled, twin-screw gunboat USS Yorktown on the Asiatic Station.
Stockton traveled first to Japan and then on to Korea, where he found his
ship at Chemulpo (Inchon). He took command on October 22. Shortly
before, the Korean government had been overthrown, and Stockton's
predecessor had sent an officer and a group of seaman guard to Seoul; Ensign
Knepper and his fifteen men were stationed at the U.S. Legation. Upon
taking command, Stockton went to Seoul to inspect the guard, confer with
American diplomats, and have an audience with the Korean King, Yi
Hueng. 61 In early December President Cleveland's Secretary of State,
Richard Olney, put an end to these activities, issuing instructions directing
American naval officers and diplomats to refrain from interfering in the
domestic politics of a friendly State. 62
For the remainder o{ his period of command Stockton cruised in Yorktown,
showing the flag in various ports in China and Japan. Toward the end of his
tour oi duty the Commander in Chief, Asiatic Station, Rear Admiral F.V.
McNair, made a formal inspection of Yorktown. In a detailed and extremely
favorable report, McNair concluded that Stockton's "officers and men are
zealous and (with good reason) are proud of their ship" — a report which earned
Stockton a personal "Well done! " from Acting Secretary of the Navy Theodore
Roosevelt. 63 In the fall of 1897 Yorktown sailed from Japan for San Francisco.
Laying up and decommissioning the ship at Mare Island Naval Ship Yard in
December 1897, Stockton returned to Newport and the Naval War College,
expecting to resume his duties as lecturer in international law.
Presidency of the Naval War College
The College was not in session during the winter oi 1897-1898, when
Stockton returned to the study of international law, but this did not slow his
work in the subject. At the invitation of Allan D. Brown, president of Norwich
xxxvii
Stockton, the War College and the Law
University in Northfield, Vermont, Stockton delivered a course of lectures to
students there. In appreciation of his effective presentation the Executive
Committee of the Board of Trustees appointed him the University's "Lecturer
in International Law (to have no compensation at present)." 64 Shortly
thereafter, with the outbreak of war with Spain in April 1898, the Navy
Department suddenly ordered to sea without relief the President of the
College, Captain Caspar Goodrich (who had helped save the College in
1889-1890). In his place the Navy Department ordered Commander Stockton
to assume duties as officer-in-charge, under the Commandant of the Newport
Training Station. Due to the war, the Department suspended plans for the
forthcoming class. There was little activity at the College during those months,
but those connected with the College in Newport followed current events
carefully. In early June 1898 Stockton was thinking about the sequel to
Dewey's victory at Manila Bay even before the USS Charleston captured Guam
on June 20, 1898. Reflecting on the strategic importance of the Mariana
Islands in terms of their relationship to the sea lines of communication across
the Pacific, Stockton wrote to Admiral Luce, "If we secure or retain a coaling
station in the Philippines we would have San Francisco or the trans -isthmian
canal to Honolulu, Honolulu to Guam, and Guam to the Philippines, the entire
stretch across the Pacific with American stepping stones in the way of coaling
stations. The north Pacific is our sphere of influence by divine right." 65
Later in June 1898 the Department ordered Stockton to prepare a revised
edition of Snow's lectures, since the widely read first edition o{ 1895 was
already out of print and a new and updated edition was urgently needed in the
fleet. By August, however, the war with Spain had ended, and the Navy
Department was taking no action to revive the College; by all reports, the
enemies of the College and its work were once again seeking to destroy it.
Theodore Roosevelt had been a strong supporter of the College, but there were
rumors that his successor as Assistant Secretary wanted to move the College to
Annapolis, creating a "Naval University" there. Luce, Mahan, and others
returned to take up the battle, arguing the inappropriateness of such a move.
Meanwhile, Stockton continued his studies on international law. To obtain the
most up-to-date information he wrote to each of the Navy's fleet commanders
at sea, including George Dewey and W. T. Sampson, asking them for their
views on improving and enlarging the manual of international law based on
Professor Snow's lectures. 66 Completing this revision on 21 October 1898,
Stockton sent the manuscript to Washington for publication by the
Government Printing Office. 67
xxxviii
John Hattendorf
Shortly after, the Navy Department issued him orders in November 1898
appointing him — still a commander — President of the Naval War College.
With the institution once again at a critical juncture, Stockton moved quickly
into action, sending letters to a wide variety of influential people arguing that a
move to Annapolis would be fatal to the intellectual purposes of the College.
Its location away from the political influences of Washington and within reach
of key universities and libraries were the main points of his argument, but also
noted, "The climate of Newport is conducive to mental labor all the year,
which cannot rightly be said of Annapolis." 68 Winning support for his cause in
Congress, Stockton was able to keep the College in Newport despite strong
opposition within the Navy Department. Thwarted, the Department
nevertheless refused to assign any officers as students to the College, arguing
that they could not be spared from sea duty and other more important shore
assignments. Stockton expressed his strong objections to the Assistant
Secretary of the Navy:
I beg leave to express my regret that it is not considered practicable, from the
present outlook, to establish a course this coming season at the College. This,
however, is but secondary to the more serious fact that the Department considers
the study of naval warfare at this institution outside the regular work of the
service. In no other country is such professional work considered secondary to
the inspection of lighthouses and the inspection and manufacture of materiel. 69
Stockton turned to an old friend of the College, Rear Admiral William T.
Sampson — now commander in chief of the North Atlantic Fleet — who had
been, with Caspar Goodrich, on Luce's original board to establish the College.
Stockton persuaded him to have the North Atlantic Fleet rendezvous in
Narragansett Bay and so arrange his ships' schedules that fleet officers could
attend an abbreviated course of lectures from May through October 1899.
In years past the Assistant Secretary of the Navy had usually come up from
Washington to give the opening address to students, but without support from
the Department, Stockton was faced with giving the address himself. 70 The
main subject of interest during the course was an examination and critique of
American operations in the War with Spain, but Stockton made sure that both
naval history and international law were included. His opening address on
"Preparation for War" was published and distributed to the service, 7 as was his
unsigned commentary on the international situations examined during the
course. 7 He himself also gave additional lectures on "The Action off Beachy
Head in 1690," an account of English joint operations directed against Puerto
Rico and Cuba in the sixteenth through eighteenth centuries, and on the legal
xxxix
Stockton, the War College and the Law
aspects of "Submarine Telegraph Cables in Wartime." 73 His lectures gained
strong support from fleet officers for the College, which played an important
role in thwarting the effort to move it to Annapolis. Ultimately the
Department met the interests of those who had opposed the College in another
way, by establishing a graduate program in engineering at Annapolis.
During this period the subject of international law remained on Stockton's
mind and he began to consider the possibility of a follow-on to Snow's
lectures — what he described to the Secretary of the Naval Institute as "a
separate work in the future upon maritime international law," a book-length
study that would encompass the full range of the subject. 74 To his knowledge,
nothing existed in English comparable to the works by Carlos Testa in
Portuguese 75 and Captain M.F.T. Ortolan in French. 76 In the meantime,
however, he forwarded his lecture on the law of submarine cables to the Naval
Institute for publication. 77
Shortly thereafter he sent to the Naval Institute another Naval War College
lecture, this one on a future inter-oceanic canal. 78 In it, Stockton emphasized
the negative effects that the 1850 Clayton-Bulwar treaty had had for the
United States. He argued that this policy needed to be changed and that the
United States had the clear right to build, protect, and fortify its own canal. In
addition, he argued that analysis of the strategic geography of the Caribbean
pointed to the importance of the Windward Passage, between Cuba and Haiti,
as the most important avenue for access to the canal. "One cork is alone
necessary for this bottle," 79 Stockton wrote. Despite the title of his article,
Stockton did not see his subject in narrow geographical terms but linked it to
broad global policy for the United States. He suggested that if the United States
wanted to develop a sphere of influence, a naval station in Korea or in northern
China was equal in importance to that in the Philippines. He acknowledged
that such a base had many drawbacks: it would require many years to link it to
any important commercial enterprise, and a very large naval capacity might be
required to maintain it. He concluded,
The questions that will arise about the Canal will be almost exclusively maritime
and with the great naval powers. To meet these powers with any tone of strength
or pretension of equality in these matters we must have a competent naval
marine; or otherwise we will experience those interpretations of international
law that are reserved for less vigorous nationalities and weaker naval powers. 80
On Mahan's suggestion, Stockton took up the issue of the capture of enemy
merchant vessels at sea. Charles Henry Butler had recently published an open
letter to Mahan in the widely read North American Review, criticizing the
xl
John Hattendorf
military value and effectiveness of capturing privately owned vessels and
cargoes. With the thought of presenting a full view of the subject from the
point of view of a belligerent who is aware o( the practice and principles of
international law, Stockton replied in the same journal. He argued that in the
case of the major commercial nations of the world, private cargoes and vessels
had a direct connection to the ability of an enemy to conduct warfare. Thus, he
believed, their destruction had merit as a military measure and should be dealt
with as such; at the same time, however, he was opposed to the payment of
prize money. Stockton turned once again to Richard Henry Dana's argument
that the sea was res omnium, the common field of war as well as of commerce. 81
A Naval War Code
While Stockton was writing and dealing with these varied issues, he
received his promotion to the grade of captain. Shortly after the academic
course ended at the Naval War College in October, the Judge Advocate
General of the Navy forwarded to Stockton for comment an unofficial letter to
the Secretary of the Navy from Lieutenant Commander William W. Kimball
suggesting that the Navy Department issue an authoritative and mandatory
code or manual to cover all cases of international law that occur in the
experience of a naval officer. While Stockton agreed with Kimball's suggestion
that it would be desirable to have such a manual, he had considerable doubt
about the practicality of producing one. "International Law is a plant of slow
growth," he wrote, "and its usages must be commonly and internationally
accepted. Precedents from our departments are materials for future rules rather
than present ones and it is worse than useless to promulgate as rules anything
which is not regarded and accepted as such by other nations." 82 A rule, he
pointed out, no matter how comprehensive it seems, can not possibly cover
every case or situation. "If officers are trained to rely upon the text of concise
and crystallized rules, without reference to the spirit and principles behind
them, I believe they will be worse off than if they relied upon the principles and
precedents alone and their native intelligence." 83 In Stockton's view, the best
way to achieve the goals that Kimball suggested was to ensure that officers
studying at the Naval War College were well grounded in the broad principles
of international law, through individual study of the treatises on the subject as
well as by hearing lectures and studying cases that showed the prevailing usage.
This, he pointed out, was the purpose behind the College's publication o(
international law situations and solutions.
xli
Stockton, the War College and the Law
While Stockton found most of Kimball's suggestions impractical, he seized
on one point: "the preparation of regulations upon the laws and usage of war
upon the sea." 84 Pointing out the precedent of the instructions for the
regulation of land warfare that Dr. Francis Lieber had prepared for the U.S.
Army during the Civil War, Stockton noted they had been "epoch making and
redounded greatly to the credit of the author, the war department and the
country." 85 Although they had been designed for the United States Army
alone, they had become the model for similar codes in other countries, and in
1880 the Institute of International Law had used them in formulating a code of
the law of war on land for universal use. The Navy, however, had nothing of so
comprehensive a nature, only a set of French instructions in 1870 and the U.S.
Navy's General Order 492 of 1898, which dealt with some of the issues that
should be included. The time was ripe to remedy the situation. "The results of
the Hague conference give new matter for such a code of instructions," he
wrote.
Now that we are at peace with the outside world the time would be an excellent
one to draw up in accordance with the advanced humanity of the times, a code
that would lead the world. As these instructions would not require any
international action, and are directed to our own service, they would be
undisputed authority, providing always they are in accord with definitely
established international law and usage and the dictates of humanity. 86
Within a week after sending this letter, Stockton received direct orders from
Secretary of the Navy John D. Long, dated November 2, 1899, directing him to
prepare a draft comprehensive code, elaborating on the legal conventions
established in the recent Hague Conference and embodying the laws of war at
sea. Upon completion of this work Stockton was to submit it for approval to
Washington. Stockton replied to Secretary Long with characteristic modesty:
In acknowledging the receipt of this order, I cannot but state that my deep
appreciation of the importance and responsibility of this duty, and the demands
which it makes, leads me to enter upon it with some reluctance, but as the matter
comes before you for final revision and approval, I trust that in its final shape the
necessary high standards will be met. 87
Stockton wrote immediately to Lieutenant Commander Kimball, who was
well known at the Naval War College as an outspoken pioneer in the
employment of torpedo boats and submarines. Additionally, in 1894-1897, the
period leading up to the Spanish American War, Kimball was in the Office of
Naval Intelligence; during those years he had worked closely with the Naval
xlii
John Hattendorf
War College on the Navy's basic war plans and strategy for that war. In his
letter, Stockton asked Kimball for any further suggestions he might have,
adding the hope that he might agree to be assigned to the College while this
work was in progress. It would, Stockton wrote, "take some time, because if
done, it should be done properly and exhaustively, and the field is a virgin
one." 88 Kimball, however, had only recently reported for duty as Ordnance
Officer at the Norfolk Navy Yard, and despite Stockton's encouragement it
would be June of 1901 before he could get orders to the Naval War College as a
student.
Seeing the new project as a vehicle to promote and to solidify the College as
well as to make an important contribution to international law, Stockton asked
the Secretary of the Navy for additional staff, arguing that he needed to be
relieved of administrative burdens to carry out this important task. Stockton also
requested a travel allowance so that he could consult professors at Harvard and
use the international law library of the Boston Athenaeum, which he considered
"especially valuable." In addition, he requested the Secretary to direct the
Surgeon General of the Navy to give his views on the care of sick and wounded,
and to ask the Secretary of State to provide to Stockton all the official
discussions, proceedings, and findings of the recent Hague Conference. 89
Building on the materials already available in Newport, he further requested the
Navy's Judge Advocate General send him copies of all "published or unpublished
codes of the laws of war upon sea or land, authorized or in use by any of the
European or civilized powers." 90 In addition, he asked permission to travel to
New York to meet with Mahan, who had been a delegate at The Hague
Conference, and to have discussions with Professor John Basset Moore of
Columbia University, whom he characterized as "a successor of Dr. Lieber at that
institution." 91 Within a few weeks Stockton's requests were granted, and he was
hard at work on the project to write a code of naval warfare.
By February of 1 900 Stockton had reached a point where he needed the U.S.
Army's current view of The Hague Convention. 92 Working rapidly, by spring
Stockton had completed a first draft of the full Code, which he circulated for
comment to three naval officers: Admiral of the Navy George Dewey, 93
Captain A. T. Mahan, and Captain Asa Walker. Walker, who was then the
next senior staff member at the Naval War College and had commanded the
USS Concord with distinction at the battle of Manila Bay, provided Stockton
with much valuable, practical advice in connection with combat operations. 94
In addition, Stockton solicited comments from several academics: Thomas S.
Woolsey of Yale, John Bassett Moore of Columbia, K. H. Strobel of Harvard,
and George Grafton Wilson of Brown University. 93 Collating their comments
xliii
Stockton, the War College and the Law
and obtaining their approval of his work, Stockton submitted the draft to
Secretary of the Navy Long on May 19, 1900. 96
In forwarding to the Secretary of the Navy the draft of his proposed
regulations concerning the law and usage of war at sea, Stockton explained
that he intended it primarily to be put in force by the U.S. Navy. For that
reason and taking account of existing American laws, he included articles
relating to privateers, letters of marque, and the capture and destruction of
enemy property at sea. If, however, the law was to be subjected to international
discussion, then these articles could be omitted, in view o( American
adherence to the Declaration of Paris during the War with Spain and with the
recent American position at The Hague Conference. 97
In his letter to the Secretary, Stockton summarized the value of this work:
In addition to the manifest advantages of a formulating and crystallization of the laws
and usages of naval war (a work that has never before been attempted, it is believed, by
another nation) , it is also hoped that this code will tend toward the amelioration of the
hardships of naval warfare in general, and more particularly in the following respects:
1 . By the adoption of all that is of practical value to be found in the additional
articles proposed at The Hague to extend the articles of the Geneva Convention
to maritime warfare.
2. By restriction to the narrowest limits the bombardment of unfortified and
undefended towns.
3. By defining the status of submarine cables in wartime.
4. By forbidding bombardment as a means of ransom upon undefended towns.
5. By forbidding the use of false colors.
6. By forbidding reprisals in excess of the offense calling them.
7. By exempting coast fishing vessels from capture, where innocently employed.
8. By incorporating the liberal allowances for vessels of the enemy at the
outbreak of war, and for blockaded vessels, given in the General Order No. 492,
of the Navy Department.
9. By providing definitely that free ships make free goods.
10. By giving all the exemption possible to mail steamers in time of war.
xliv
John Hattendorf
1 1 . By exempting neutral convoys from the right of search.
12. By promulgating the general classification of contraband of war in such a
manner as to make an international adoption of the principles possible.
13. By authorizing the use of the regulations for land warfare, whenever
applicable to the Naval Service of the United States. This has not been
heretofore officially done. 98
During May and June 1900 the Secretary of the Navy circulated the draft
Code in Washington. Officials at the State Department and the Navy
Department suggested some changes and clarifications to the original draft,
most of which Stockton accepted." The only suggestion he refused was related
to Article 22, on privately fitted-out hospital ships, which in the draft was a
close translation of Article 3 of the recently concluded Hague Convention.
On June 27, 1900, in General Order 551, Secretary of the Navy Long issued
the Code to the US Navy as a twenty-seven-page pamphlet "approved by the
President of the United States." 1 On Stockton's recommendation, the Navy
Department ordered the Government Printing Office to prepare a thousand
copies of the Code, with six hundred copies to be distributed to officers of the
service, two hundred copies for the future use of the Naval War College, 175 to
naval stations and libraries, and twenty-five to be distributed directly by the
Secretary and Assistant Secretary of the Navy. 101 By July Stockton had finished
correcting the proofs, 102 and a month later he was able to send ten copies to
foreign naval attaches serving in Washington. 103
Within a year it began to be favorably noticed overseas. The naval
correspondent of The Times of London wrote, "This little Code of Laws
deserves to be noted as another product of the United States Naval War
College, to which we owe Captain Mahan's work on sea power." 104 The Code
also began to attract attention within the United States. By early October 1900
the Navy Department was beginning to receive a number of requests from the
public for copies. Up to that point both the Navy Department and the College
had supplied copies in response to a growing number of requests, but since
general distribution outside the service had not been contemplated, there were
not enough copies to continue doing this. The College had already distributed
five hundred copies to all naval officers from the Admiral of the Navy down to
the middle of the lieutenant seniority list; shortly after, the Superintendent of
the Naval Academy requested 125 for use in teaching cadets. With the supply
so low, the War College recommended that another a thousand copies be
printed immediately and that the Academy's order be delayed until they were
xlv
Stockton, the War College and the Law
available. Nevertheless, with only 141 copies remaining, the Navy Department
directed Stockton to supply one hundred copies to the Naval Academy. 105 As
interest continued to grow in the subject, Stockton recommended to the Navy
Department that it obtain a thousand copies of Lieber's Instructions for the
Government of Armies of the United States in the Field and distribute them as a
supplement to his Naval Code. 106
Soon after completion of his work on the code of naval warfare, the Naval
Institute asked Stockton to submit a paper for publication. He sent them a
paper that he had read before the Military and Historical Society of
Massachusetts on a subject that had also been the topic of an earlier Naval War
College lecture: "An Account of Some Past Military and Naval Operations
Directed against Porto [sic] Rico and Cuba." 107 Surveying six English
operations, ranging from Hawkins and Drake to the eighteenth century,
Stockton pointed out that only two had been successful. In concluding his
essay, Stockton linked, as is the hallmark of the Naval War College, the study
of naval history with current events: "I trust that there are other teachings in
such historical accounts than that of self congratulation. The obligations that
have arisen with our new dependencies are greater than any strength that
arises from them, and it is well to study the necessities that will arise from their
maintenance and defense." 108
In March 1900, Stockton became the first as President of the College to take
up the new additional responsibilities that came with the establishment of the
General Board, a permanent body of senior officers tasked to provide
professional advice to the Secretary of the Navy on naval operations and
policy. As originally constituted, the Board was chaired by Admiral of the Navy
George Dewey and included the Chief of the Bureau of Navigation, the Navy's
Chief Intelligence Officer and his assistant, the President of the Naval War
College and his assistant, and three additional officers to be selected.
By the summer of 1900, however, Stockton had intimations that he would soon
be sent to sea. Thus, the Naval War College course of 1900 was Stockton's last as
its President. During the course, Stockton joined Mahan and others in giving
lectures that year. He gave the opening lecture that introduced students to the
purpose oi the course, later lecturing on "The Formation o{ War Charts" and
finally on international law, in a series of nine lectures. In addition, he compiled
the notes and commentary to the Annual International Law Situations, of which a
thousand copies were printed and distributed to the service. 109
Relieved as President of the College by Captain French Chadwick on 25
October 1900, Stockton remained assigned to the Naval War College on
special duty. In this capacity, he and his family went to New York City, where
xlvi
John Hattendorf
Stockton began to compile cases in international law that in his judgment were
of special interest to the naval service, but that Freeman Snow had not already
included in his 1893 volume of Cases and Opinions} 10 In particular, he focused
on gathering precedents and cases from recent experience in the
Sino-Japanese, Spanish-American, and South African wars, 111 as well as some
current topics from his own experience: American jurisdiction in the Bering
Sea, cooperation oi civilized powers in non-Christian and semi-civilized
countries, submarine cables, blockade, and the arrest of deserters. The Naval
War College staff arranged and published Stockton's compilation (with some
further additions) in 1904. 112
On Stockton's advice, his successor at the Naval War College moved to
promote the further study of international law in Newport. Citing Stockton's
work during the course given in 1900, Chadwick urged that the Navy employ a
highly qualified instructor in the subject,
in order to make the work here not merely instructional, but developmental, by
throwing the work of thought to a great degree upon the officer himself.
Ordinary lectures in international law are, to officers who have been dealing with
the subject more or less during their careers (which in the case of some who have
attended have extended over forty years) ineffectual means in the development
desired, unless they deal in the newer aspects of the subject, as was the case of
some delivered last summer [with a series of lectures on "Insurgency" by George
Grafton Wilson]. 113
Stockton took the lead in researching new material for the College's use,
while Chadwick moved away from the passive lecture format and replaced it
with an active approach, using creative research and problem-solving. In
New York Stockton had persuaded John Bassett Moore of Columbia to take
up the position Chadwick had anounced, and the Naval War College
employed him for this purpose at a thousand dollars a year. 114 Moore agreed
with the method of situations and discussions as a means to "create a much
greater personal on the part oi the officers upon whom will be thrown the
burden of personal research." Chadwick wrote, "This method involves a
decided stimulus of emulation and interest such as mere lectures cannot
give." 115 Chadwick also requested additional funds to purchase books for the
Naval War College library, to obtain additional lectures on special topics in
law, and to distribute printed versions of the lectures and situations. "Action
of the kind mentioned," Chadwick wrote, "would tend to link the college with
the universities of the country and place the service in greater sympathy with our
more thoughtful men: a thing from every point of view much to be desired." 116
xlvii
Stockton, the War College and the Law
At the same time, the College found that Stockton's work, both in his
Manual of International Law Based on Snow's Lectures and his A Naval War
Code, was in such high demand that the College President urged the Navy
Department to authorize immediate new editions of both works. 117
Battleship Command
Completing the draft of his compilation of international law cases for the
Naval War College, Stockton then wrote a short article for Forum on the "Laws
and Usages oi War at Sea" 118 before heading off for sea duty in the Pacific.
Traveling to California by rail, he took passage across the Pacific. In Hong
Kong harbor on March 11, 1901, Stockton took command of the
eleven-thousand-ton battleship USS Kentucky, which had arrived from the
United States on her maiden voyage only a few weeks before. In the previous
year the U.S. government had drawn down naval forces in that area,
decommissioning its heavy units in the western Pacific; the arrival of the
Kentucky in the Far East indicated a clear change of policy in Washington, 119
and Stockton's assignment to command that ship was clearly a mark oi
approval from the Navy Department. Stockton wrote to his friend and
successor at Newport, French Chadwick, of his arrival in Hong Kong and his
first sight of his new command. Chadwick replied, "I am glad that you like your
ship. You could, of course, hardly help doing so, as we have nothing better
afloat." 120
Shortly after Stockton took command, Rear Admiral Louis Kempf made
Kentucky his flagship as Commander of the Southern Squadron of the Asiatic
Fleet. A year later, his successor, Rear Admiral Frank Wildes, chose the station
ship in Manila, USS Rainbow, as his flagship; at that point, Stockton took on
the additional duty of Chief of Staff, Asiatic Fleet, and Kentucky, as the largest
American warship present, became the flagship of Rear Admiral Robley Evans,
commander in chief of the Asiatic Station. Anxious to make his command into
an effective fighting force, Evans attempted to unite the three squadrons of the
Asiatic Fleet and to conduct "fleet evolutions" with his sixteen ships of varying
types and sizes. 121 Due to the incompatibility of the various ship-types, these
exercises were not successful, but Evans had high praise for the commanding
officer of his flagship. During drills at Subic Bay shortly after Christmas 1902, as
Evans wrote in his published memoirs, "the handling of my flagship during this
manoeuver was such as to bring from all who saw it unstinted praise. Captain
Stockton showed his ability as an able and accomplished seaman." 122
xlviii
John Hattendorf
During the period of Stockton's command the ship visited a variety of East
and Southeast Asian ports in protection of American interests, including
Manila, Olongapo, Labuan, Singapore, Chefu, Taku, Nanking, Woosung,
Amoy, Nagasaki, Kobe and Yokohama. Stockton's journal for this period
consists largely of a record of salutes fired, lists of distinguished callers on board,
officers ordered and detached, and ceremonial and social events. 123
Naval Attache Duty and Flag Rank
Following his relief from command of the battleship Kentucky, Stockton was
ordered to the American Embassy in London, where he served as U.S. Naval
Attache from May 1903 to December 1905. 124 Stockton and his family left New
York on the steamer St. Paul on 20 May 1903 and arrived in England eight days
later, settling into an apartment at 210 Ashley Gardens. Stockton arrived in
England at an interesting moment in the history of the Royal Navy. His two
and a half years as naval attache spanned the period when Admiral Lord
Walter Kerr ended his period as First Sea Lord and Admiral Sir John Fisher
began his first term in that office. 125 Stockton was in a position to observe at
first hand the growing rivalry between Britain and Germany, as well as Fisher's
style of reform, first as Second Sea Lord, then as Commander in Chief at
Portsmouth, and from October 1904, his first fourteen months as First Sea
Lord.
While Stockton was in London many of the leading Americans interested in
international law met at Lake Mohonk in the Catskills to establish the
American Society of International Law. Although he did not play a direct role
in the formation of the Society, he was among its original members, and the
Society invited him to give an address at the Society's first annual meeting in
Washington in April 1907. At that meeting, on the eve of the Second Hague
Conference, Stockton took as his theme the question, 126 "Would Immunity
from Capture, during War, of Non-offending Private Property upon the High
Seas Be in the Interest of Civilization?" The answer, he argued, depended upon
"whether the execution of this war right made for the prevention of war or not.
If it is, it is in the interest of civilization." 127
On January 7, 1906, upon his return to the United States, Stockton was
promoted to rear admiral. In this grade he served in Washington on a number
of boards and special assignments: as President of the Board of Inspection and
Survey, of the Naval Examiners Board, and of the Naval Retirement Board. In
August 1906 Secretary of the Navy Charles Bonaparte appointed him to the
Personnel Board, chaired by Assistant Secretary Truman Newberry.
il
Stockton, the War College and the Law
Finally, when the Special Service Squadron was formed to represent the
United States at the Bordeaux Maritime Exposition, Stockton was ordered to
its command, in the only assignment in which he flew his flag at sea. Consisting
of the armored cruisers Tennessee and Washington, the squadron visited a
variety of French ports. At this time, U.S. relations with Japan were extremely
tense. When Stockton's squadron encountered a Japanese squadron under
Vice Admiral Ijuin at Brest, there were false reports in the press of tension
between the crews of the two squadrons and that Stockton's ships were the
vanguard of a fleet to be sent to the Pacific. Quashing the rumors, Stockton
told reporters,
The newspapers make the war scares. I haven't seen any American newspapers
and I don't know how much of a war scare you have been making here, but 1 can
tell you that, so far as indications I have seen are concerned, the possibilities of a
war with Japan seems very remote. There has been absolutely nothing in our
cruise that we have encountered to suggest that the Japanese felt anything but
good will toward us. 128
Stockton also told reporters that he would retire on October 13, 1907. When
asked what he intended to do, he replied,
I am a man with four homes and 1 am in something of a quandary as to where to
live when my active service is over. Having married a wife from New York, it is of
course impossible for me to live in Philadelphia, my old home. Newport has some
claims on me, but on the whole I think 1 shall live in Washington. When a
Congressman dies they say he goes to the Senate, and I suppose Washington is
the heaven of retired naval officers. 129
The London Naval Conference
Stockton did retire from active duty in October, though he and his wife first
took up residence after all in New York City, at 22 West 9th Street. In early
1908 he wrote an essay on the subject of the "The Use of Submarine Mines and
Torpedoes in Time of War," 130 a subject that had arisen for the first time at the
Second Hague Conference and which remained o( immediate interest. While
the rules that the conference had established on this topic did not go as far as
he would have liked, Stockton believed that "the half loaf is certainly better
than no loaf at all. By the next conference it is hoped that the safety of the high
seas will be provided for in a more effective and comprehensive manner than
the rules which were finally formulated in The Hague." 131
1
John Hattendorf
Later in 1908, Great Britain called an International Naval Conference to
frame a code of laws for naval warfare and to establish an International Prize
Court, following the recommendations of the Second Hague Peace
Conference. The conference was to determine as many principles of
international maritime law as possible, and it was attended by representatives
of the United States, Great Britain, France, Germany, Italy, Austria-Hungary,
Russia, Spain, the Netherlands, and Japan. The United States appointed
Stockton as its first delegate to the London Naval Conference, to be held in
1908-1909. Professor George Grafton Wilson of Harvard accompanied
Stockton as the second delegate, and Ellery C. Stowell was secretary to the
delegation.
In preparation, the Secretary of the Navy directed the Naval War College to
consider the range of issues that might come before the conference and
produce a set of recommendations that could be the basis for instructions to the
American delegates. Rear Admiral John P. Merrell, President of the College,
submitted a list of twenty-five questions to each of two committees of five
officers apiece. The questions ranged from "What regulations should be made
in regard to abolition, limitation and classification of contraband?" to "What
attitude should be assumed on convoy?" and "Should ransom be allowed?
When?" The views of the two committees were dramatically different. The first
committee answered each of the twenty-five questions within narrow confines,
concluding, among other things, that contraband should not be abolished and
that ransom should not be allowed. It split over the issue o{ convoy, two
members for the idea that neutrals convoying by their own ships were immune
from search, and three holding that the presence of an escort flying the same
flag did not affect the treatment of a neutral convoy. The first committee
agreed, however, that a neutral merchant ship being convoyed by a warship of a
different neutral nation was not exempt from search by a belligerent. 132
The second committee took a quite different approach, choosing first to
establish a broad policy approach, and producing a diametrically opposed view:
"The general policy of the United States as to the rules to be advocated as a
basis of International Law should be to bring about the adoption of such rules
as will be most advantageous to the United States while being as little
advantage as possible to a possible enemy of the United States." 133 The
committee reviewed potential wars with South American nations, Britain, and
Japan, and the committee members concluded that the United States would
need practically all articles now considered as absolute contraband. On the
other hand, food supply by sea was not essential to the United States; while it
might be to an opponent, the United States could not hope to starve any first
Stockton, the War College and the Law
class power by cutting off its food supplies. Moreover, they felt it unlikely that
the United States would have anything more than a small amount of
mercantile shipping. Therefore, the second committee argued that "the
general policy of the United States should be to the following end: (1) Abolish
contraband. (2) Limit un-neutral service as far as possible, keeping in view that
it would be better for the United States if no such rule existed. (3) Abolish the
principle of continuous voyage. No discussion is needed to show that the above
would give neutrals every advantage and that this would be very advantageous
in case the United States being a neutral." 134 They answered the full set of
questions along similar lines, taking the view that ransom should be allowed at
the option of the captor and that, since contraband would be abolished, a
verbal declaration of the convoy commander should be sufficient to verify that
the ships under his protection had no intention to violate a blockade or to
perform non-neutral service.
The disparity between the two Naval War College committees reflected the
lack of consensus on these issues within the U.S. Navy. 135 A month later, the
State Department had formally asked the Navy Department for its views
relating to the instructions for US delegates. After further consideration of the
issues, Admiral Merrell replied that the positions taken in the College's "Blue
Book" International Law Discussions, I903 136 be made part of the instructions.
This volume was the result of an effort led by Professor George Grafton Wilson
to adapt Stockton's 1900 Code from a purely internal regulation for the U.S.
Navy to the basis for an international agreement to which the United States
would be a party. 137 In addition, Merrell suggested a number of additional
statements should be made in regard to issues that the British ambassador's
letter of invitation to the Secretary of State of March 27, 1908, had suggested
would come before the Conference. 138 The Naval War College formally
recommended that the United States take the following positions:
(a) Contraband. First, military materials, arms and other articles, solely of use
for war, when within or destined for territory within the enemy's jurisdiction.
Second, anything destined for the enemy's naval or military use.
1. ...
2. In general, the penalty for the carriage of contraband is the loss of
freight, and delay during adjudication, and if the owner of the contraband is
owner in the vessel carrying the contraband, the condemnation of his portion of
the vessel.
Hi
John Hattendorf
3. Neutral merchant ships, under neutral convoy are exempt from visit and
search.
4. The question of compensation where vessels have been seized but have
been found, in fact, only to have been carrying innocent cargo, should be
determined by the court in each instance upon its merits.
(b) A vessel is liable to the penalty for violation of blockade from the time of
her departing from neutral jurisdiction, with the intention to violate blockade,
until the completion of her voyage.
In case the master of a vessel receives warning direct from a government
vessel, or it is clear that he knows of the existence of the blockade from official or
private information or from any other source, such master shall be considered to
have received actual notice of the blockade.
In the following cases it shall be deemed that the notice of the
declaration of the blockade has been received:
1. The case in which the master of a vessel is considered to have
received a notice of the blockade whether he has actually received it
or not, such notice having been sent to the proper authorities of the
country to which the vessel belongs, and there having elapsed a
sufficient time for the authorities to notify the residents of their
nationality.
2. The case in which the master of a vessel is considered to have
received a notice of the blockade, the fact of the blockade having
been made public.
(c) As to continuous voyage, the actual destination of vessels or goods will, as
a rule, determine their treatment on the seas outside of neutral jurisdiction.
(d) If there are controlling reasons why enemy vessels may not be sent in for
adjudication, as unseaworthiness, the existence of infectious disease, or the lack
of a prize crew, they may be appraised and sold, and if this cannot be done, may
be destroyed. The imminent danger of recapture would justify destruction, if
there was no doubt that the vessel was good prize, But in all such cases, all the
papers and other testimony should be sent to the prize court, in order that a
decree may be duly entered.
If a seized neutral vessel cannot, for any reason, be brought into port for
adjudication, it should be dismissed, except when the master and crew refuse to
ini
Stockton, the War College and the Law
aid in bringing the vessel to a prize court, or when the vessel is guilty of unneutral
service, in which case the vessel may be treated as an enemy vessel.
(e) Neutral ships and persons acting in such manner as to identify themselves
with the enemy are guilty of unneutral service, and are liable to treatment as
belligerents.
(f) The conversion of merchant vessels into war vessels should not be allowed
on the high seas.
(g) The transfer of vessels, when completed before the outbreak of war, even
though in anticipation of war, is valid if in conformity to the laws of the state of
the vendor and of the vendee.
The transfer of a private vessel from a belligerent's flag during war is
recognized by the enemy as valid only when bona fide and when title has fully
passed from the owner and the actual delivery of the vessel to the purchaser has
been completed in a port outside the jurisdiction of the belligerent states in
conformity to the laws of the state of the vendor and of the vendee.
(h) The domicile of the owner should be the dominant factor in determining
the treatment of property in time of war, though a strict rule to this effect would
be open to many exceptions. 139
In their official instructions, Stockton and Wilson were directed,
As to the framing of a convention relative to the customs of maritime warfare
you are referred to the Naval War Code promulgated in General Order No. 55 1
of the Navy Department of June 27, 1900, which has met with general
commendation by naval authorities throughout the civilized world and which in
general expresses the views of the United States, subject to a few specific
amendments suggested in the volume of international law discussions of the
Naval War College of the year 1903, pages 91 to 97. The order putting this code
into force was revoked by the Navy Department in 1904, not because of any
change of views as to the rules it contained, but because many of those rules,
being imposed upon the United States by the order, would have put our naval
forces at a disadvantage as against the forces of other powers, upon whom the
rules are not binding. The whole discussion of these rules contained in the
volume to which I have referred is commended to your careful study. 140
The two delegates to the London Conference, Stockton and Wilson, hardly
needed further study of this volume. Nevertheless, the explicit mention of this
volume in the orders gave a formal affirmation to their earlier work and to the
effort of the Naval War College in this area.
liv
John Hattendorf
Two months before the conference began, Foreign Secretary Sir Edward
Grey suggested to the United States that the American and British naval
delegates meet before the conference and come to some practical agreement
on the questions under discussion, creating a joint position on common
Anglo-American interests. Stockton went to London, although at that point
he had no formal instructions beyond the views that the Naval War College
had provided. There he met with Admiral Sir Edmond Slade and Admiral Sir
Charles Ottley, both of whom Stockton had known from his days as a naval
attache. The British representatives seem to have misinterpreted Stockton's
natural reticence for agreement. In his private diary, Slade described Stockton
as "deaf & not very quick" but "very conciliatory." Slade had the impression
that the United States would "support our views throughout." 141 In fact
Stockton was at the time writing to Washington that "practically the only
thing of any importance between our precedents and rules and that of the
British of consequence is the right of search of vessels under convoy of vessels
of war. I told them that we could not concede that right — from mere
self-respect — and I was assured that they were willing to give that up as they
stood alone in that matter." 142 President Merrell o( the Naval War College
agreed that the United States should stand firm on the convoy issue, asserting
further that "anything, no matter what its character, destined for the use of the
enemy's military or naval forces, is contraband."
When the conference convened the State Department maintained the
American position, often refusing to compromise. The issue of contraband
became a particularly divisive one, as did the doctrine of continuous voyage.
British expectations that the United States would follow its lead and
compromise evaporated quickly. The British became exasperated with its
inflexible stance in attempting to gain international approval for the Naval
War Code; Slade confided to his diary, "The Americans are impossible and
there is a strong probability of their wrecking everything." 143 Going even so far
at one point as to walk out of the Conference, Stockton finally succeeded in
getting removed from the declaration an article declaring that absolute
contraband could be condemned only when the captor provided absolute proof
of enemy destination. The United States agreed to maintain the doctrine of
continuous voyage for absolute contraband and blockade, but to abolish it for
conditional contraband. Stockton joined the other delegates in signing the
final document of the Conference, the seventy-one articles of the Declaration
of London Concerning the Laws of Naval War of 26 February 1909. Despite
these efforts, no State would ratify the Declaration when the British parliament
refused to approve it. Nevertheless, it was applied by the participants in the
lv
Stockton, the War College and the Law
Turcoltalian of 1911, the Balkan Wars of 1912-1913, and with modifications
by the French and British between 1914-1916 during World War I.
In April 1909, shortly after the London Naval Conference, Stockton would
summarize its work in an address to the American Society of International
Law. Taking pride in the work of the American delegation, he pointed out that
Chapter One of the Convention on blockade in time of war codified and
crystallized what had been the American practice and jurisprudence on that
subject. 144 He explained the compromise whereby the United States had given
up the doctrine of continuous voyage for blockade and conditional contraband
in order to obtain agreement with its application to absolute contraband, a
view several nations accepted at the Conference for the first time. 145 Several
attempts had been made during the conference to revive the old "Rule of
1756," which would treat as an enemy merchant vessel any neutral engaging,
with the consent of an enemy government, in trade forbidden to them in time
of peace. The American delegation had successfully fought these attempts,
since in Stockton's view they might affect future development of American
coastal trade that would follow the opening of the Panama Canal, and the
increased trade with American possessions in the West Indies and in the
Pacific. 146 Most importantly, Stockton pointed out, "For the first time in history
the great sea powers — and consequently the great powers of the world — have
agreed upon a code formulated with very considerable detail and precision,
which settles many disputed questions of maritime warfare." 147 Despite the
difficulty of the negotiation, it had been an accomplishment that in no small
measure was his own, but he was well aware that there was more work to be
done.
In his remarks Stockton would also note that in order to smooth the way for
American ratification of the 1907 protocol on establishment of the
International Prize Court at The Hague, the American delegation had
proposed that cases coming before it be considered rehearings de novo, as direct
claims for compensation, rather than as appeals to a court that might be
considered higher than national courts. Agreement on this point allowed the
United States to circumvent constitutional issues which would have otherwise
prevented ratification of that agreement. 148
Academe, and the First World War
Upon his return from London, Stockton and his wife settled in Washington,
D.C. where he lived for the remainder of his life, at 2019 O Street, N.W. He
quickly became associated with George Washington University, which
lvi
John Hattendorf
awarded him an honorary doctor of laws degree in 1909, recognizing his
contributions to international law. The following year, George Washington
University appointed Stockton as lecturer in law and diplomacy. During
Stockton's first year at George Washington he wrote his Manual of International
Law for the Use of Naval Officers, first published under that title in 191 1. 149 The
outline and approach of the new book clearly followed the model of his earlier
1894 Manual Based upon Lectures Delivered at the Naval War College. In his
preface to the new volume, Stockton wrote,
My study of international law, begun at the United States Naval Academy and
continued during my mature years at the Naval War College, convinces me that
to no service of government is a knowledge of international law more valuable
than to that of the navy. I might also add that, so far as my experience goes, there
is no naval service whose members are more familiar with the tenets of the laws of
nations than our own. 150
In April of 1910, George Washington University elected Stockton a
member of its Board of Trustees, and in May appointed him acting president of
the university. During these years the university was in financial difficulty and
surrounded by controversy. Stockton effectively set about restoring confidence
in the university, reorganizing the administration and its finances. 151
Despite the administrative burdens placed on him, Stockton continued his
interests in international law. In 1912 he returned to the subject of the
codification of the laws of naval warfare in an address before the American
Society of International Law. Speaking at the Society's annual meeting, he
suggested that the agreements in the Declaration of Paris, the First and Second
Hague Conventions, and the Declaration of London provided sufficient
material from which to form the component parts of a naval code. However,
taken together, they left thirteen major questions that still needed to be settled:
1. The conversion and reconversion of merchantmen and warships.
2. The status of aliens engaged in sea trade in the enemy's country.
3. The Rule of 1756. The status of neutral vessels engaged in wartime in
trade forbidden them in peace time, including cabotage and petit cabotage.
4. The use of false colors in war time by belligerent warships.
5. The use and treatment of telegraphic cables in wartime.
6. The immunity from capture of private property at sea.
7. The formation of a volunteer navy. Privateering.
8. The extension of immunities from search and detention of neutral mail
steamers in wartime.
9. The extension of the width of the marginal sea belt or marine league.
lvii
Stockton, the War College and the Law
10. The recognition and status of insurgent warships at sea.
11. The rules of the visits of belligerent warships in neutral ports, their
internment, refueling and extent of their periods of return.
12. The definite period allowed to an enemy ship in port at the outbreak of
war or declaration of blockade — days of grace.
13. The status of pacific blockade in regard to merchant vessels of Powers not
immediately concerned. 152
Stockton declared, "I think it is not unreasonable to hope and expect that at
the next Hague Conference the beginning of a codification of the rules of naval
warfare may be begun. The revision of this sea code will follow in the successive
meetings after a trial which is likely to be had in the occasional, or may we hope
for the future, in the rare occurrence of maritime war." 153
Returning again to his long-standing interest in the Caribbean basin, he
wrote two essays 154 in which he objected to the Panama Canal Act of 1912,
which Congress had passed on 24 August of that year, less than ten days after
the canal first opened for traffic. This Act exempted U.S. coastwise trade from
payment of the canal tolls, whereas, Stockton pointed out, the Hay-Pauncefote
Treaty had provided that the canal would be free and open to merchant vessels
and warships of all nations on entirely equal terms. Majority opinion in the
United States interpreted the treaty provision to mean uniformity of rates
when charged, but Stockton pointedly argued that the phrase "all nations"
included the United States and U.S. vessels could not be exempt from tolls. As
one of the few Americans who had long experience with both the country's
strategic interests and its international legal responsibilities in connection with
the Panama Canal, Stockton's voice carried great weight. Under pressure of
this sort, Woodrow Wilson asked Congress to repeal the Act in 1914.
Throughout his career, Stockton was an advocate of legal equity before the
law as well as restraint in warfare, but at the same time he remained an
advocate of preparedness and a strong navy. Speaking at the University of
Chicago in early 1913, on the very day that Congress made a deep cut in
appropriations for future naval construction, Stockton declared that an
increase in the country's naval forces would be a measure for common safety.
"Every year should be a year of preparation and construction in the navy, so
long as wars cannot be eliminated and armaments continue to increase. Woe
to any country which leave its coast, its coast towns and its export trade the
subject of injury and destruction on account of a weak navy." 155 On the other
hand, he advocated that the United States reduce the area to which it applied
the Monroe Doctrine, limiting it to the West Indies, the Caribbean, and the
Gulf of Mexico. He urged that the United States establish a defense board for
lviii
John Hattendorf
this area and that it create a naval program that would render it "an American
Mediterranean, under full and perpetual control of the United States." 156
Stockton remained keenly interested in the academic study of international
law. In 1914, he represented George Washington University at the first
conference of teachers on international law, organized in 1914 by the
American Society of International Law and the Carneige Endowment. To fill
the need for a textbook in this area, the New York publisher Charles Scribner
and Sons asked Stockton to prepare a volume on international law to
supersede Theodore Woolsey's study, which they had kept in print with notes
by Woolsey's son. Stockton's new volume, Outlines of International Law, which
appeared in late 1914, was by far the largest of his books, extending to 616
pages in length. In his introduction, Stockton noted the great need at that
moment for an authoritative textbook for students of law as well as for the
general public. "The deplorable war which is being carried out at the time of
this writing," he said, "has created many complex problems and delicate
situations in connection with international law. It has been said by good
authority that there have arisen more vexed questions in international law
during the first six weeks of this war than in the entire period of the Napoleonic
contests." 157 Stockton made a particular point of including in the book Richard
Henry Dana's notes on recognition of belligerency and independence, which
he had long felt were classics on the subject but had been denied publication in
the United States since the legal dispute over Dana's 1886 edition of
Wheaton. 158 The New York Times reviewer believed that it would get "a warm
welcome," particularly as it appears "just at this moment, when American are
seriously discussing important questions involving American rights and
responsibilities thrust upon them through the operations and attitudes of the
powers now engaged in war." 159
As World War I unfolded, Stockton watched maritime events with great
interest. In January 1915 a German raider captured and sank the first
American merchantman, and in March two American vessels were lost to
mines in the North Sea. Deeply concerned even before the United States had
suffered serious losses at sea, Stockton set out to inform the American public
about the issues. Writing in the widely read journal The World's Work,
Stockton explained that "the outbreak of war automatically divides all civilized
nations of the world into two general classes, belligerents and neutrals. . . .
There is no choice; countries can not manage to refuse war once declared
against them, and neutral governments must be either impartial and cannot
shade their neutrality into either a state of sympathetic or that of unfriendly
neutrality." 160 After outlining the development of the law, he summarized the
lix
Stockton, the War College and the Law
world situation as he saw it, rehearsing the thirteen points he had earlier
compiled as the main unsettled question in the law of maritime warfare. He
could now add a fourteenth: the laying of floating mines upon the high seas.
"Besides the settlement of these questions there remain glaring defects in
connection with international law:"
1. Insufficient means for enforcing the rules of international law and for
enforcing and punishing infractions.
2. The inconsistent treatment of innocent non-combatants, who are not
allowed on the one hand to defend themselves and their homes against intrusion
and violence of the military forces of the enemy, but who can be killed and
maimed by surprise, if innocently occupying residential portions of defended
towns and of certain undefended towns and places.
3. The evasion of conventions and treaties concerning the rules of war on
account of the non-adherence of one of the belligerents, no matter how
insignificant the nationality may be.
4. A common agreement as to military necessities. 161
In 1917, Stockton prepared a revision to his Manual for the Use of Naval
Officers, adding a supplementary chapter, an updated bibliography, an index,
and additional documents in the appendix, notably the text of the U.S.
neutrality proclamation. 162 The following year Stockton resigned from the
presidency of George Washington University, though he retained his post as
lecturer in international law and diplomacy until 1921. Recognizing his great
success in leading the university, the Board of Trustees formally minuted that
he had taken up the post "when the affairs of the university were at a crisis. . . .
Its steady and peaceful growth has been the result of conservative methods
maintained within the lines of constructive expansion. The characteristic oi
Admiral Stockton's administration has been the firm security with which each
step has been safely and permanently retained." 163
Retirement
Stockton remained active in the field of international law. From 1908 until
1924 he was repeatedly reelected as a member of the Executive Committee of
the American Society of International Law, and he regularly participated in the
work of the Society. At the 1919 annual meeting, he commented on the
Covenant oi the League of Nations and on the recommendation for an
International Law Conference. 164 In his next published writing he made a
careful examination of American policy and the 1856 Declaration of Paris in
lx
John Hattendorf
terms of its four principal issues: the abolishment of privateering, the safety of a
neutral flag for enemy goods other than contraband, the protection of neutral
goods other than contraband under an enemy flag, and the idea that blockades
in order to be binding must be effective. He concluded that while the United
States had never signed the Declaration, taking exception to the abolition of
privateering, it was an issue that subsequent maritime history had shown to be
unimportant. In this area the United States followed the other doctrines, those
declared officially during the Spanish American War, and were either literally
included or implied in the Naval War Code of 1 900, and contained in the 1908
Declaration of London — which he believed had exhaustively defined the
subject of blockade. 165 In preparation for the Washington Conference in 1921,
Stockton served on the Society's subcommittee to formulate changes to the
laws of warfare. At the Society's annual meeting that year Stockton noted that
the laws "have not been disclaimed even in recent wars, even if in some cases
they were not followed to a full extent by a delinquent belligerent. The
existence of vice does not nullify virtue." 166 In April 1923, thirteen months
before his death, he rose for the last time at the American Society o(
International Law annual meeting to give a brief comment on the three-mile
limit. 167
Stockton died, aged seventy-nine years, of heart disease at his O Street
home in Washington on May 30, 1924. Following a funeral in his parish
church, St. John's Episcopal Church at 16th and H streets, he was buried in
Arlington National Cemetery. 168
In nineteenth century America, many people considered the establishment,
clarification, and dissemination of international law as only a branch of the
larger field of law. Typically the men involved were either statesmen, who
established practices and doctrine, judges, who made important decisions, and
scholars, who contributed to the gradual evolution of education and literature
on the topic. Although the practice o{ naval operations played an important
role, it was unusual during this period of find a naval officer who was a
distinguished student and writer in this period. From the 1880s to the early
decades of the twentieth century, Charles Stockton was certainly the most
important figure for the development of international law in the U.S. Navy.
While he is most often remembered as the author of the Naval War Code of
1900 and as the principal American delegate to the London Conference in
1908-1909, which translated his Code into International Law, he had an even
greater and wider influence within the Navy. He was a key figure in the
institutional history of the Naval War College, nurturing and sustaining it at
lxi
Stockton, the War College and the Law
critical times in its second decade. He supervised construction of its first
purpose-built building, saved the College from dissolution in 1899, and laid the
foundation for its continuing work on the subject of the law of naval warfare.
On a wider stage within the Navy, his textbooks and manuals for the study of
international law, and his initiative in promoting the practical study of
international law through wide ranging discussions centered on situations,
influenced generations of American naval officers as well as others interested
in the subject of international maritime law. In addition to these achievements,
he was an accomplished seaman, commanding the Navy's newest battleship in
the Far East, and leading a significant voyage of exploration of Alaska and the
Arctic.
Several days after his death, in an editorial supplementing his obituary
printed the previous day, The New York Times praised his contributions to
international law and recalled that Stockton had been "a great sea lawyer as
well as a capable and energetic officer with a credible service afloat." After
outlining his contributions to international law and noting his reputation as
the best-informed man in the U.S. Navy on international law, the editorialist
offered an assessment: that he "has been compared as a naval author with
Admiral Mahan, but the fact should not be lost sight of that Mahan preferred
the library to the deck of a ship. This was not the case with Stockton." 169
Notes
1. Naval War College Archives, record group 3, box 1 73: Chair of International Law, file
12,040.
2. The sections on his early life are largely derived from the manuscript, Recollections of
My Life, Afloat and Ashore, from the Beginning to My Arrival in Rio de Janeiro in 1866. Naval
Historical Collection, Naval War College, ms. coll. 56: Stockton Papers, box 2, folder 4A
[hereafter Recollections].
3. Transcription of letter from Rev. Thomas Stockton to Rev. William Stockton, (July 5,
1861) in Recollections, supra note 2, at 15a.
4. Davis, Nimrod, or the American Whaleman (1874).
5. Recollections, supra note 2, at 24-
6. Id. at 28.
7. Letter from Commanding Officer, USS Sabine to C.H. Stockton (Feb. 20, 1866),
Stockton Papers, box 1, folder 1.
8. Recollections (Part 2), supra note 2, at 15.
9. Rat 17.
10. Still, American Seapower in the Old World: The United States Navy in
European and Near Eastern Waters, 1865-1917, at 64-66 (1980).
11. One shipmate wrote his memoirs of this voyage. SCHROEDER, A HALF CENTURY OF
Naval Service 77-104 (1922).
lxii
John Hattendorf
12. Letter from Captain R. Chandler to Secretary of the Navy (Sept. 14, 1881), Stockton
Papers, box 1, folder 1.
13. Cornelia Stockton, later wife of Captain Frederick A. Traut, USN, (1871-1958), U.S.
Naval Academy class of 1892.
14. Gleaves, The Admiral: The Memoirs of Albert Gleaves, Admiral, USN 23
(1985).
15. Letter from Captain D.B. Harmony to Secretary of the Navy (Sept. 6, 1881), Stockton
Papers, box 1, folder 1.
16. See letters from these boards acknowledging with deep regret his resignation from the
boards on his assignment to sea duty in April 1889. Stockton Papers, box 1, Ale 1.
1 7. Stockton, Origins, History, Laws, and Regulations of the United States
Naval Asylum, Philadelphia (1886).
18. Stockton, The Naval Asylum and Service Pensions for Enlisted Men, 12 NAVAL INST.
Proceedings 53 (1886).
19. Comment, 13 NAVAL INST. PROC. 541 (1887).
20. Letter from Richard Wainwright to Stockton (Oct. 8, 1888), Stockton Papers, box 1,
folder 1.
21. Stockton, Simpsons Timber Dry Docks, 13 NAVAL INST. PROC. 221 (1887).
22. Letter from Rear Admiral S.B. Luce to Stockton Qan. 4, 1888) , Stockton Papers, box 1 ,
folder 1. See also, Knight, unpublished typescript, History of the Naval War College to 1914,
pages for 1887 and 1888, Naval Historical Collection.
23. Lectures 2 and 3 of this series, given in 1887 and 1888 are "Strategic Studies in the Gulf
of Mexico, Caribbean Sea, and the Pacific Ocean," Naval War College Archives, record group 8,
series 1, box 27, file S. For an example of Stockton's sources, see the transcription of the letter
from Commander Colby M. Chester to Rear Admiral Luce (July 9, 1888) on pp. 8-9 of lecture 2.
24. See letter from A.T. Mahan to Horace E. Scudder (Sept. 26, 1890) in LETTERS AND
Papers of Alfred Thayer Mahan 26 (Seager & Maguire eds., 1975).
25. Report of the Secretary of the Navy, 1889, pt. 1, 124-67 (1890).
26. Exchange of telegrams between Bureau of Navigation, Stockton and Emory (Apr.
1889), Stockton Papers, box 1, folder 1. There is no hint of this in THE LIFE OF AN AMERICAN
Sailor: Rear Admiral William Hemsley Emory, United States Navy (Gleaves ed.,
1923).
27. Journal of the Cruise of the Thetis in Alaskan and Arctic Waters May 31st 1889 to [13
October 1889, off Sitka], entry for July 21, 1889. Stockton Papers, box 2, folder 5, [hereinafter
Journal] quoted in SHULMAN, NAVALISM AND THE EMERGENCE OF AMERICAN SEA POWER,
1882-1893, at 92-93, (1995).
28. Id., entry for Sept. 15, 1889, quoted in SHULMAN, supra note 27, at 93.
29. Undated clipping from The Spirit of Missions, c. 1925, at 602-603, Stockton Papers, box
3, folder 7.
30. Letter from John W. Wood, National Council Protestant Episcopal Church, to Marcus
Bergman, National Museum, Washington, D.C. Quly 14, 1924), Naval Historical Collection,
Naval War College, ms. coll. 56: Stockton Papers, box 1, folder 3. See also Journal, supra note 27.
Stockton visited Cape Hope on three occasions in this period, 4-5, 24 July, 10-20 September
1889. For his dealings with the natives, see, in particular, pp. 150-61.
31. Letter from Commissioner, Bureau of Education, Interior Department to Stockton
(Apr. 11, 1890), Stockton Papers, box 1, folder 1.
32. Alaska Historical Society certificate, Sitka, Feb. 14, 1890, Stockton Papers, box 1,
folder 1.
lxiii
Stockton, the War College and the Law
33. Stockton, Arctic Cruise of U.S.S. Thetis in the Summer and Autumn of 1889, 2 NATL
GEOGRAPHIC MAG. (1890) [hereinafter Arctic Cruise] . The article includes a map, showing the
track of the Thetis.
34- Hydrographer of the Navy, Circular Letter (Jan. 2, 1890) forwarding Report of Ice and
Ice Movements in the Bering Sea and the Arctic Basin by Ensign Edward Simpson under
Direction of Lieutenant Commander C.H. Stockton. Report no. 92 (1890).
35. Arctic Cruise, supra note 33, at 171, and Reconstruction of the United States Navy,
Overland Monthly, October 1890, at 381.
36. Id. at 384.
37. Letter from Lansing Mizner, U.S. Legation in Central America, to Stockton (Sept. 13,
1890), Stockton Papers, box 1, folder 1.
38. Letter from Assistant Secretary of the Navy James R. Soley to Stockton (Sept. 10,
1890) , forwarding letter from Acting Secretary of State W. F. Wharton to Secretary of the Navy
(Sept. 9, 1890), Stockton Papers, box 1, file 1.
39. Letter from Caspar Goodrich to President, Naval War College (Mar. 5, 1906) , Naval War
College Archives, record group 1, box 3, folder 23, quoted in HATTENDORF, ET AL., SAILORS AND
SCHOLARS: THE CENTENNIAL HISTORY OF THE NAVAL WAR COLLEGE 30 (1984).
40. Annual Report of the Secretary of the Navy, 1889, at 37 (1890), quoted in id.
at 30.
41. Orders to Stockton, August 18 and October 3, 1891, Stockton Papers, box 1, file 1.
42. Mahan, From Sail to Steam 303 (1907).
43. Draft letter from Mrs. Helen Stockton Parker (Mrs. W. Ainsworth Parker) to Captain
W.D. Puleston (January 1936), Naval Historical Collection, Naval War College, ms. coll. 56:
Stockton Papers, box 2, folder 3.
44- Mahan, The Practical Character of the Naval War College, quoted in HATTENDORF, supra
note 39, at 32.
45. Official Journal of the Naval War College, 1892-1895, Naval War College Archives,
record group 1 , box 6.
46. Stockton, Notes upon the Necessity and Utility of the Naval War College in Connection with
Preparations for Defence and War, 19 NAVAL INST. PROCEEDINGS 407, quotation at 408 (1893).
47. Snow, Cases and Opinions in International Law (1893).
48. Taylor, Address Delivered to the Class at the Naval War College Upon
the Closing of the Session of 1894, at 15 (1894).
49. "International Law, memo of proposed subjects for lectures drawn up as a suggestion to
Professor Snow," Naval War College Archives, record group 28: President's File — Stockton,
Charles H.
50. Id.
51. Id.
52. The text of this lecture is in the Naval War College Archives, record group 14: Faculty
and Staff Presentations, box 1 (1886-1900).
53. Id.
54. Naval War College, International Law Situations (1894).
55. HATTENDORF, supra note 39, at 41. Letter from Stockton to Lieutenant Charles
Cooper, Naval Institute (Dec. 10, 1898), Naval Historical Collection, Naval War College, ms.
coll. 56: Stockton Papers, box 2, folder 2: letterbox of Official Correspondence 1889-1900, at
77, 74-75.
56. International Law Lectures Delivered at the Naval War College by
Freeman Snow, Ph.D., ll.b., Late Instructor in International Law in Harvard
XIV
John Hattendorf
University: Prepared and Arranged for Publication by Charles H. Stockton
(1895).
57. Letter fromS. U. Macvane to Stockton (Sept. 13, 1894), reproduced in Recollections,
supra note 2, at 39.
58. ONI receipt, March 1895, Stockton Papers, box 1, folder 1.
59. The manuscript texts of these ten lectures are in the Naval War College Archives,
record group 15: Guest Lectures, box 1, 1894-1903.
60. Naval War College, International Law (1895). Stockton is identified as the
author and compiler of the International Law Situations only in NAVAL WAR COLLEGE,
ABSTRACT OF COURSE, 1895, at 5 (1895).
61. Miscellaneous Notes and Memoranda made during the Cruise of the Yorktown,
1895-1896, at 19-20, Stockton Papers, box 3, folder 1.
62. Braisted, The United States Navy in the Pacific, 1897-I909,at 17-18 (1958).
63. Report of Inspection of USS Yorktown (September 21, 1897), Stockton Papers, Official
and semi-official letters, box 2, folder 1. Letter from Acting Secretary of the Navy Theodore
Roosevelt to Stockton (Oct. 28, 1897), typescript copy in Stockton Papers, signed original in
National Archives, record group 45: area files, area 10.
64. Letter from Allan D. Brown, President, Norwich University, to Stockton (Mar. 28,
1898), Stockton Papers, box 2, folder 1.
65. Letter from Stockton to Luce (June 5, 1898) , printed in LIFE AND LETTERS OF STEPHEN
B. Luce, U.S. Navy, Founder of the Naval War College 280 (Gleaves ed., 1925) .
66. Letters from Stockton to Dewey and Sampson (July 22, 1898), Naval Historical
Collection, Naval War College, ms. coll. 56: Stockton Papers, box 2, folder 2: letterbook of
Official Correspondence 1889-1900, at 10-11.
67. A Manual Based Upon Lectures Delivered at the Naval War College by
Freeman Snow, Ph.d, LL.B., Late Instructor in International Law in Harvard
University (2d ed.), Prepared and Arranged for Publication by the Direction of
the Navy Department by Commander C.H. Stockton, U.S.N. (1898). The first copies of
the book were received from the printers in January 1899. See Letter from Stockton to Chief,
Bureau of Equipment (Jan. 10, 1899), Naval War College Archives, record group 1, box 7, letter
book, 1897-1900, at 238 ff.
68. Letter from Stockton to Senator Nelson Aldrich (July 19, 1899) , Stockton Papers, box
2, Official letter book, letter 167.
69. Letter from Stockton to Assistant Secretary of the Navy (Feb. 15, 1899), Naval War
College Archives, record group 1, box 6, letterbook 1899-1901, at 4.
70. Preparation for War, Naval War College Archives, record group 16: Opening
Addresses, 1899.
71. Stockton, Preparation for War : A Discussion of Some of the Various
Elements to be Considered in the Formation of Plans of Operations and in the
Study of Campaigns, Delivered at the Opening of the Course at the Naval War
College, Newport, R.I., May 31, 1899 (1899).
72. Naval War College, International Law Situations 1899 (1899).
73. The manuscripts of all three 1899 lectures are in Naval War College Archives, record
group 14: Faculty and Staff presentations, box: 1886-1900.
74. Letter from Stockton to Lieut. Charles Copper, Secretary, Naval Institute (Dec. 10,
1898), Naval Historical Collection, Naval War College, ms. coll. 56: Stockton Papers, box 2,
folder 2: Letterbook of Official Correspondence 1889-1900, at 77, 74-75.
lxv
Stockton, the War College and the Law
75. Stockton read French and knew this work from the French edition: TESTA, LE DRIOT
public internationale maritime (1886).
76. Ortolan, Diplomatie de la mer (1864) .
77. Stockton, Submarine Cables in Time of War, 14 NAVAL INST. PROG 451 (1898).
78. Stockton, The American Interoceanic Canal: A Study of the Commercial, Naval, and
Political Conditions, 25 NAVAL INST. PROCEEDINGS 753 (1899).
79. Id. at 767.
80. Id. at 797.
81. Stockton, Capture of Enemy Vessels at Sea, THE NORTH AM. REV., Feb. 1899, at 206.
82. Letter from Stockton to Judge Advocate General (Oct. 26, 1899), Naval War College
Archives, record group 1, box 7, letterbook 1897-1900, at 314-18, quote at 314.
83. Id. at 315.
84. Id. at 317.
85. Id.
86. Rat 317-318.
87. Letter from Stockton to Secretary of the Navy (Nov. 6, 1899), Naval War College
Archives, record group 1, box 6, letterbook 1899-1901, at 119-21.
88. Letter from Stockton to W. W. Kimball (Nov. 4, 1899) Naval War College Archives,
record group 1, box 7, letterbook 1897-1900, at 319.
89. Id.
90. Letter from Stockton to Judge Advocate General of the Navy (Nov. 24, 1899) , in id. at 1 29.
91. Letter from Stockton to Secretary of the Navy (Nov. 22, 1899), in id. at 125.
92. Letter from Stockton to Secretary of the Navy (Feb. 20, 1900), in id. at 164.
93. Letter from Stockton to George Dewey (Apr. 25, 1900), in id. at box 7, p. 375.
94. Stockton mentions Walker's contribution in his official, annual report on the Naval
War College. Letter from Stockton to Assistant Secretary of the Navy (Oct. 1, 1900), in id. at
31 2, 3 14, printed in ANNUAL REPORT OF THE SECRETARY OF THE NAVY (1890) .
95. Letter from Stockton to Professors Woolsey, Strobel and Grafton (]an. 13 and Apr. 12,
1900) , Naval War College Archives, record group 1 , box 7, letterbook 1897-1900, at 338, 365.
96. For a reference to the explicit approval of Woolsey and Strobel, see letter from
Stockton to Judge Advocate General of the Navy (May 19, 1900), Naval War College Archives,
record group 1, box 6, letterbook 1899-1901, at 244.
97. Letter from Stockton to Secretary of the Navy (May 19, 1900), in id. at 236-40. With
the exception of altering the wording, but not the meaning, of the first two sentences and
omitting the final paragraph on who had reviewed the draft before it was submitted, an undated
version of this letter was printed in NAVAL WAR COLLEGE, INTERNATIONAL LAW
Discussions, 1903: The United States Naval War Code of 1900, at 5-7 (1904).
98. Id.
99. Letters from Stockton to Secretary of the Navy (June 21 & 22, 1900), Naval War
College Archives, record group 1, box 6, letterbook 1899-1901, at 258, 261.
100. The Laws and Usages of War at Sea, Naval War Code (1900).
101. Letter from Stockton to Secretary of the Navy (June 28, 1900), Naval War College
Archives, record group 1, box 6, letterbook 1899-1901, at 264.
102. Letters from Stockton to Chief, Bureau of Navigation u ly9 & 16, 1900), at 271, 273.
103. Letter from Stockton to Chief Intelligence Officer, Navy Department (Aug. 13, 1900) ,
in id. at 287.
104. A Naval War Code, The Times [London], April 5, 1901.
lxvi
John Hattendorf
105. Letter from Lieut. William McCarty Little to James Brown (Oct. 8, 1900) and
endorsements to requests from the Navy Department, Naval War College Archives, record
group 1, box 6, letterbook 1899-1901, at 329, 331, 340.
106. Letter from Stockton to Secretary of the Navy (Oct. 8, 1900), in id. at 330.
107. Letter from Stockton to Lieutenant E.W. Eberle (June 21, 1900), Naval War College
Archives, record group 1, box 6, letterbook 1899-1901, at 259.
108. Stockton, An Account of Some Past Military and Naval Operations Directed against Porto
[sic] Rico and Cuba, 26 NAVAL INST. PROCEED. 457, 475 (1900).
109. Summary of schedule for 1900, Naval War College Archives, record group 1, box 6,
letterbook 1899-1901, at 323-25. On International Law Situations for 1900, see Chadwick to
Assistant Secretary of the Navy (Nov. 27, 1900), in id. at 365.
110. Orders from Captain F.E. Chadwick to Stockton (Oct. 27, 1900), in id. at 349, with
reference to FREEMAN H. SNOW, CASES AND OPINIONS IN INTERNATIONAL LAW (1893).
111. Naval War College, Abstract of the Course, 1900, at 63 (1901).
112. Naval War College, International Law: Recent Supreme Court
Decisions and Other Opinions and Precedents (1904) .
113. Letter from Chadwick to Assistant Secretary of the Navy (Jan. 3, 1901), in id. at 386.
Wilson, Insurgency: Lectures Delivered at the Naval War College, Newport,
Rhode Island, August 1900 (1900).
114- Letters from Chadwick to Chief, Bureau of Navigation, to Professor John Bassett Moore (Mar.
26, 1901) and to Assistant Secretary of the Navy (Mar. 27, 1901), in id. at 475 1/2, 477, 479-^80.
115. Letter from Chadwick to Assistant Secretary, supra note 114, at 480.
116. Rat 388.
117. Letter from Chadwick to Assistant Secretary of the Navy (Jan. 4, 1901), in id. at 389.
The British ambassador requested eight copies of The Laws and Usages of War at Sea, Chadwick
to Chief Intelligence Officer (Mar. 4, 1901), in id. at 461.
118. Stockton, Laws and Usages of War at Sea, FORUM, February 1901, at 705-709.
119. Braisted, The United States Navy in the Pacific, 1897-1900, at 114 (1958).
120. Letter from Chadwick to Stockton (Apr. 22, 1901), Naval War College Archives,
record group 1, box 7, letterbook 1900-1902, at 260.
121. Rat 118.
122. Evans, An Admiral's Log: Being Continued Recollections of Naval Life
211 (1910).
123. Journal of the Cruise of the USS Kentucky, Captain C.H. Stockton, USN,
Commanding, March 11, 1901 [to March 1903], Stockton Papers, box 3, folder 2.
124. Private Diary, 1904, Stockton Papers, box 3, folder 3.
125. Much has been written about this period. See, e.g., WILLIAMS, DEFENDING THE
Empire: The Conservative Party and British Defence Policy 1899-1915, at 59-76
(1991); Marder, The Anatomy of British Sea Power (1940); Mackay, Fisher of
kllverstone (1973); sumida, in defence of naval supremacy: finance,
Technology and British Naval Policy, 1889-1914 (1989).
126. Stockton, Would Immunity from Capture, during War, of Non-offending Private Property
upon the High Seas be in the Interest of Civilization? 1 AM. J. INT'L L. 930 (1907).
127. Rat 943.
128. Newspaper clippings, Stockton Papers, box 3, folder 6: Japanese Warships Arrive in Brest;
Americans Join French in Welcome, NEW YORK HERALD TRIBUNE, European ed., July 25, 1907,
at 1; Quote from Stockton Back with Squadron, unidentified newspaper, vol. xxi, no. 122, New
York, Aug. 6, 1907.
lxvii
Stockton, the War College and the Law
129. Id.
130. Stockton, The Use of Submarine Mines and Torpedoes in Time of War, 2 AM. J. INT'L L.
276 (1908).
131. Id. at 284.
132. International Law, Reports of First and Second Committees, Aug. 27, 1908, Naval War
College Archives, record group 8, series 2, box 87, file XLAI, 1908-191 1, item 1908, no. 83.
133. Report of the 2nd Committee in id.
134. Id. at 4-5.
135. Coogan, The End of Neutrality: The United States, Britain, and Maritime
RIGHTS, 1899-1915, at 113 (1981).
136. Naval War College, International Law Discussions, 1903, The United
States Naval War Code of 1900 (1904).
137. Summary of Suggested Changes, in id. at 91-97.
1 38. Letter from President, Naval War College, to Secretary of the Navy (Sept. 29, 1908) , Naval
War College Archives, record group 8, series 2, box 87, file XLAI, 1908-1911, item 1908, no. 83.
139. Id.
140. Quoted in Stockton, The International Naval Conference of 1 908, 3 AM. J. INTLL. 600 (1909) .
141. Quotations from National Maritime Museum, Slade Papers (M) 3, diary entries for Oct.
26, 28, Dec. 1, 1908, quoted in COOGAN, supra note 135, at 113-14-
142. Extract of Letter from Rear Admiral C.H. Stockton (Nov. 18, 1908) , with commentary
in letter of President, Naval War College, to Chief, Bureau of Navigation (Dec. 1 2, 1908) , Naval
War College Archives, record group 8, series 2, box 87, file XLAI 1908-191 1, item 1909, no 4.
143. Slade diary entry, Feb. 5, 1909, quoted in COOGAN, supra note 135, at 116.
144- Stockton, Conference of 1908, supra note 140, at 596-618, also published as Review of the
Proceedings of the Conference in London, 1909 PROC. AM. SOC'Y INTL L. 61-84.
145. Id. at 608.
146. Id. at 611.
147. Id. at 614.
148. Id. at 616.
149. Stockton, Manual of International Law for the Use of Naval Officers
(1911).
150. Preface, dated Nov. 1, 1910, in id.
151. Undated and unsigned memo, Naval Historical Collection, Naval War College, ms.
coll. 56: Stockton Papers, box 2, folder 4. See also Our New President: Admiral Stockton, THE
GEORGE WASHINGTON NEWS, vol. l.no. l.Sept. 1910, at 1-2. Stockton Papers, box 3, folder 7.
152. Stockton, The Codification of the Laws of Naval Warfare, 1909 PROC. AM. SOC'Y INTL
L. 117-19.
153. W. at 122.
154- Stockton, Does the Expression "All Nations" in Article 3 of the Hay-Pauncefote Treaty
Include the United States?, 7 AM. J. INT'L L. 92 (191 2) , and Panama Canal Tolls, 38 NAVAL INST.
Proceedings 493 (1912).
155. Sees Risk in Weak Navy, N.Y. TIMES, Feb. 27, 1913, at 5: 4-5.
156. Id.
157. Stockton, Outlines of International Law at v (1914).
158. Recollections, supra note 2, at 38.
159. International Law, N.Y. TIMES BOOK REV., Feb. 7, 1915, pt VI, at 41:2.
160. Stockton, International Law of the Sea, 29 THE WORLD'S WORK 706, quote at 706 (1915).
161. Id. at 712.
lxviii
John Hattendorf
162. See Stockton's handwritten insertions for the 1917 revision in his own copy of the 191 1
edition, Stockton Papers, box 5, file 1.
163. Minutes of the Board of Trustees, George Washington University, upon their
acceptance of the resignation of Rear Admiral Charles H. Stockton as President of the
University, Stockton Papers, box 4, folder 7.
164- Stockton, Remarks on the Covenant of the League of Nations, 1918—1919 PROC. AM.
SOCY INTL L. 45-5 1 and Remarks on the Recommendation for an International Law Conference, in
id. at 51-61.
165. Stockton, The Declaration of Paris, J. AM. SOCY INTL L., July 1920, at 356.
166. Stockton, Remarks on the Laws of War, 1921 PROC. AM. SOCY INT'L L. 100, 101.
167. Stockton, Remarks on the Three Mile Limit, 1923 PROC. AM. SOCY INT'L L. 43.
168. Admiral Stockton Dies in Washington, N.Y. TIMES, June 2, 1924, at 17.
169. Sailor and Sea Lawyer, N.Y. TIMES, June 3, 1924, at 16.
Appendix
The Published Writings of Charles H. Stockton
Origin, History, Laws, and Regulations of the United States Naval Asylum,
Philadelphia, Pennsylvania. Washington: Government Printing
Office, 1886.
"Naval Asylum and Service Pensions for Enlisted Men," U.S. Naval
Institute Proceedings, XII (1886), pp. 63-67.
"Comments," U.S. Naval Institute Proceedings, XXII (1887), pp. 541-42.
"Simpson's Timber Dry Docks," U.S. Naval Institute Proceedings, XIII
(1887), pp. 221-25.
"The Capture of Enemy Merchant Vessels at Sea," The North American
Review, CLXVIII (1890), pp. 206-11.
"The Arctic Cruise of the U.S.S. Thetis in the Summer and Autumn of
1889," National Geographic Magazine, 2 (1890), pp. 171-98.
"The Reconstruction of the United States Navy," The Overland Monthly,
XVI (October 1890), pp. 381-86.
"Notes Upon the Necessity and Utility of the Naval War College in
Connection with Preparation for Defense and War," U.S. Naval
Institute Proceedings, XIX (1893), pp. 407-13.
XIX
Stockton, the War College and the Law
"Naval War College. Summer of 1894. International Law Situations," in
Naval War College Abstract of the Course, 1894. Washington:
Government Printing Office, 1894.
"Naval War College. Summer of 1895. International Law Situations" in
Naval War College Abstract of the Course, 1895. Washington:
Government Printing Office, 1895.
Editor, Naval War College. International Law: Lectures Delivered at the Naval
War College by Freeman Snow. Prepared and Arranged for Publication
by Charles H. Stockton. Washington, D.C.: Government Printing
Office, 1895.
"Submarine Telegraph Cables in Time of War," U.S. Naval Institute
Proceedings, XXIV (1898), pp. 451-456.
Editor, International Law: A Manual Based upon Lectures Delivered at the
Naval War College by Freeman Snow, PhD, LLB, Late Instruaor in
International Law in Harvard University. Second Edition.
Washington, D.C.: Government Printing Office, 1898.
"Naval War College. Summer of 1899. International Law Situations" in
Naval War College Abstract of the Course, J 899. Washington:
Government Printing Office, 1899.
Naval War College. Session of 1 899. Preparation for War. A Discussion of Some
of the Various Elements to be Considered in the Formation of Plans of
Operations and in the Study of Campaigns. Delivered at the Opening of
the Course at the Naval War College. Newport, R.I., May 31, 1899.
Washington: Government Printing Office, 1899.
"The American Interoceanic Canal: A Study of the Commercial, Naval and
Political Conditions," U.S. Naval Institute Proceedings, XXV (1899),
pp. 753-797.
"An Account of Some Past Military and Naval Operations Directed Against
Porto Rico and Cuba," U.S. Naval Institute Proceedings, XXVI
(1900), pp. 457^75.
The Laws and Usages of War at Sea: A Naval War Code. Washington:
Government Printing Office 1900).
"Laws and Usages of War at Sea," Forum (February 1901), pp. 706-09.
lxx
John Hattendorf
Naval War College. International Law Discussions, 1903: The United States
Naval War Code of 1 900. Washington: Government Printing Office,
1904, pp. 5-7, 100-14.
Naval War College. Recent Supreme Court Decisions and Other Opinions and
Precedents. Prepared under the Direction of the Naval War College.
Washington: Government Printing Office, 1904.
"Discussion," U.S. Naval Institute Proceedings, XXXI (1905), pp. 194-97.
"Would Immunity from Capture during War of Non-offending Private
Property upon the High Seas Be in the Interest o( Civilization,"
American ]ournal of International Law, 1 (1907), pp. 930-43.
"The Use of Submarines, Mines and Torpedoes in Time of War," American
Journal of International Law, 2 (1908), pp. 276-84.
"The International Naval Conference o{ London, 19084909," American
Journal of International Law, 3 (1909), pp. 596-618.
"Address of Mr. Charles H. Stockton of Washington, D.C." [A Review of
the Proceedings of the Conference in London], American Society of
International Law Proceedings (1909), pp. 61-84.
"Discussion ," U.S. Naval Institute Proceedings, XXXV (1909), pp. 380-82.
A Manual of International Law for the Use of Naval Officers. Annapolis: Naval
Institute, 1911.
"The Codification of the Laws of Naval Warfare," American Society of
International Law Proceedings, (1912), pp. 115-23.
"Panama Canal Tolls," U.S. Naval Institute Proceedings, 38 (1912),
pp. 493-98.
"Does the Expression 'All Nations' in the Hay-Pauncefote Treaty Include
the United States," American Society of International Law Proceedings
(1913), pp. 92-101.
Outlines of International Law. New York: Charles Scribner & Sons, 1914.
"International Law of the Sea: The Right of Search — Contraband and Its
Destination — Transfer of Registry — Floating Mines — Blockades —
The Rights and Duties of Belligerents and Neutrals," The World's
Work, 29 (April 1915), pp. 706-712.
lxxi
Stockton, the War College and the Law
"A Historical Sketch of George Washington University, Washington D.C.,
Formerly Known as Columbian University and Columbian College;
and Biographical Sketches" George Washington University Bulletin,
14 (June 1915 ), pp. 1-25.
A Historical Sketch of George Washington University, Washington D.C.
Formerly Known as Columbian University and Columbian College,
accompanied by a Sketch of the Lives of the Presidents. Washington,
D.C: George Washington University, 1916.
A Manual of International Law for the Use of Naval Officers. Revised
Edition. Annapolis: Naval Institute, 1917.
"The Declaration of Paris," American Journal of International Law (1920),
pp. 356-68.
Remarks on the Covenant of the League of Nations, American Society of
International Law Proceedings (1918-1919), pp. 45-51.
Remarks on Recommendation for an International Law Conference,
American Society of International Law Proceedings (1918-1919),
pp. 51-61.
Remarks on the Law of War, American Society of International Law
Proceedings (1921), pp. 100-101.
Remarks on the Three-Mile Limit, American Society of International Law
Proceedings (1923), pp. 43-44.
lxxii
I
Megatrends in the Use of Force
Anthony D'Amato
AT ANY GIVEN MOMENT IN HISTORY, there are hundreds if not
thousands of political, cultural, and economic trends that an
observer can identify. Some of the trends will be short and of no
consequence, some long but also inconsequential, and many of them just
"noise," but there will also be a few significant megatrends. A later historian
has an easy job: she looks back at the visible long-term trends that changed
the world. But how can we identify the significant megatrends of today? As
we approach the end of the twentieth century, millenary thinking
encourages one to try. I will suggest some megatrends that I believe will
impact most significantly on the future use of force. Yet in contributing to a
volume that is part of a historic and enduring series, I am troubled by the
likelihood that a future reader may be interested in my essay only to see
what later developments blindsided me. 0{ course, some things could
possibly happen that would make any such enterprise, not just mine, quite
obsolete: invasion from another galaxy, conquest by deadly viruses, or more
benignly, cheaply converting water into energy. But macro-convulsive
events aside, and with more than customary trepidation, I offer here a
discussion of some of the megatrends that I see will probably have the
greatest impact on the future use of force.
Megatrends in the Use of Force
The Global Market
The demise of Marxism -Leninism in the former Soviet Union was only the
most visible effect of a worldwide surge to capitalism and free markets. Are
there any "undeveloped" nations today? Perhaps there are a few, but nearly all
nations rightly regard themselves as "developing" or "developed." Former
political "hot spots" all over the world have cooled down as the people in those
localities have increasingly realized the foolishness o{ engaging in political
fights while their neighbors in peaceful countries are busy accumulating
wealth. I have in mind South Africa (how else account for the incredible
dismantling of apartheid?), Northern Ireland, and even the Middle East, which
is fitfully moving toward accommodation.
As prosperity spreads, we hear commentators saying that war is
economically irrational and hence cannot or will not occur. The problem is
that popular writers were saying the same thing in the years preceding the
outbreak of World War I. Industrial Europe was humming along in
1907-1914, trade was flourishing, and wars seemed a thing of the past. Was
there a difference between those times and today with respect to the outlook
for war? I can suggest two interrelated differences.
One is colonization. Prior to the First World War, the European powers, no
matter how peaceful vis-a-vis each other, were engaged in aggrandizement of
their empires abroad. Colonial wars were being fought in Africa and Southeast
Asia even as the home countries appeared peaceable within Europe. Perhaps
the submerged competition for empire, combined with a continuing taste for
foreign military adventurism, were long levers propelling the mother countries
toward war. Looking back on it, it seemed to have been a case of the colonial
tail wagging the home country dog.
A second difference concerns convictions about the peace thesis. Although
it was popular to claim that wars were economically irrational, there were
perhaps too many skeptics in high places. The skeptics were justified at least in
believing that it had not been proven that nation A would become richer by
trading with nation B than conquering and subjugating B. Perhaps colonization
was the basis for this belief; after all, the major nations were engaged in
colonization at a time when their home economies appeared to be prospering.
Although there may not have been any causal connection between
colonization and prosperity, when two major trends coexist many people
assume that they are correlated. It was intellectually hard to make a case that a
nation could be better off without colonies. To be sure, nations without
colonies such as those that made up the Austro-Hungarian Empire, were
Anthony D'Amato
thriving prior to World War I, but this could be rationalized as derivative or
spillover prosperity from colonizers such as France, Germany, and the
Netherlands.
Today, in contrast, colonialism has ended. I would like to show by some
statistics the generally accepted proposition that the peace thesis has been
proven by the experience of Japan.
Japan for the last hundred years has been a nation of processors, importing
raw materials and energy and exporting finished products. Japan's prosperity in
the processing business was rudely disrupted in the aftermath of World War I,
when European nations, and eventually the United States, erected high tariff
barriers. No longer able to sell its products profitably in these two markets,
Japan was plunged into a severe recession. Control of its economically hapless
government soon passed into the hands of demagogues and militarists. Their
agenda was to substitute force for trade: an export market for Japanese goods
would be created by force in China, to be followed up by forcible control over
imports from Southeast Asia. The "export" part of the story got off to a good
start with the immediate conquest of Manchuria, unopposed by the League of
Nations. But soon the Japanese Army was confronted with sophisticated
guerrilla tactics in the rest of the vast Chinese empire. It got bogged down in
China through the rest of the 1930s and for the entire duration of World War
II. Far from being able to generate a captive Chinese market for Japanese
products, the only "demand" created was that for Weaponry and ammunition
on the part of the Japanese army — a demand that Japan had to satisfy for free.
However, it is the "import" side of the story that furnishes the more
interesting and decisive demonstration of the peace thesis. (The case of Japan's
China adventure was not conclusive, in that it could be blamed on military
shortcomings and poor generalship rather than economic irrationality.) Prior
to 1940 Japan had to import 83 percent of its iron-ore requirements, 40 percent
of its steel, 80 percent of its oil, and 100 percent of its aluminum. Then it
invaded Southeast Asia, with immediate and astounding success. Military
dictatorships were set up in Hong Kong, the Philippines, Malaya, Singapore,
the Dutch East Indies, Indochina, Siam, northwest New Guinea, Burma, and
numerous South Pacific islands. But surprisingly, exports from these newly
colonized territories to Japan steadily declined from 1942 to 1945, even though
in 1942-1943 there was only sporadic Allied interference with Japanese
shipping. 1 By 1945 Japanese coal imports were at 8 percent of their 1941 level,
iron ore at 5 percent, iron and steel at 18 percent, and rubber at 26 percent.
Also, within the conquered lands themselves, by 1945 tin production in
Malaya had declined to 24 percent of its prewar level, and in the Dutch East
Megatrends in the Use of Force
Indies oil had collapsed to 5 percent of its prewar output. 2 Military conquest
had thus contributed both to a sharp reduction in the production of raw
materials in Southeast Asia and a near-collapse of Japanese imports of these
raw materials.
Contrast this situation with that of the present day. The efficacy differential
of trade over war is such that Japan now imports all the raw materials it wants,
and the profitability of its processing industry has resulted in an enormous
capital trade surplus. The lesson learned not only by the Japanese public but
also by people throughout the world is that everyone can become materially
richer if their nations trade with other nations instead of trying to conquer and
control them. It is better for A to trade with B than to own B.
Trade increases the material wealth of both A and B irrespective of the
sophistication of their internal economic systems. If A is very rich and B very
poor, and even if A can produce more efficiently every single item that B can
produce, the Doctrine of Comparative Advantage nevertheless assures that
both A and B will become better off by trading with each other. 3 As Paul
Krugman puts it, "[A] country whose productivity lags that of its trading
partners in all or almost all industries will export those goods in which its
productivity disadvantage is smallest." 4 The attraction o{ trade to A is
inescapable: it becomes more wealthy itself while driving up the wealth of its
neighbor B, thus giving B less incentive to prey upon A.
Despite this reality, history has shown that a war can break out no matter
how economically irrational it might be. Our baser instincts tend to control our
actions; our minds, swept along, provide the necessary rationalizations. 5 When
mass emotion has been aroused by appeals to nationalism, "God and Country,"
religious fundamentalism, lebensraum, demonizing one's neighbors, and the
like, then nations have resorted to war. (A recent example was the soapbox
orators' appeals in Former Yugoslavia, turning a previously peaceful
accommodation among Croats, Muslims, and Serbs into mutual hatred and
civil war. The result was nothing short of economic disaster for all parties,
which is probably one reason why the nations of the European Union were not
particularly motivated to intervene.) Emotions such as these cannot be
trumped by appeals to reason. To block a militant emotion, a countervailing
emotion must be evoked.
Emotional Value of Life
I believe that the most significant megatrend of the twentieth century is the
sharply increasing value we place on individual human lives. This may be a
Anthony D'Amato
strange proposition to assign to a century in which more people have been
killed than ever before (the two world wars, Stalin's and Hitler's genocides,
etc.) Yet it was largely as a revulsion against those killings that the post-World
War II era witnessed a seachange to international human rights: from the
Universal Declaration of Human Rights and the Genocide Convention to the
recent Rights of the Child Convention (ratified by more States, and more
quickly, than any treaty in history). But revulsion against killing aside, I think
the two underlying causes of the increasing value placed on human life are
population dynamics and television.
Population Dynamics, The Malthusian doomsayers of the 1970s, such as Paul
Ehrlich, were right when they said that a geometrically increasing world
population would render human life very cheap, but they were wrong in
predicting a population increase. To be sure, one can still make a vivid claim
that there is a global population explosion. I recently added up demographic
statistics that show us to be adding to the world's net population, each year, a
number equal to the combined populations of New York City, Los Angeles,
Chicago, Mexico City, Rio de Janeiro, London, Paris, Berlin, Vienna, Rome,
Moscow, Bombay, Melbourne, Beijing, Shanghai, and Tokyo. How can the
world continue to absorb all these new people each year? The world's
population, now at 5.7 billion, will increase to about 9.4 billion over the next
fifty years. Are we not already witnessing the cheapening o( human life, sadly
exemplified in genocides in Cambodia, former Yugoslavia, and
Rwanda -Burundi?
Despite overall population growth, the megatrend goes the other way. For
the first time in human history the developed nations are experiencing a
population decline. United Nations statistics compiled in 1995 show that the
fertility rate of women was equal to or less than the replacement rate (2.1
children per woman) in countries having 44 percent of the total world
population. By 2015 it is projected that countries containing two-thirds of the
world's population will show a zero or negative replacement rate. 6 The lowest
fertility rates are in Italy (1.24), Spain (1.27), and Germany (1.30). Hong Kong
(1.32) and Japan (1.48) are surprisingly low, as are Russia (1.53), South Korea
(1.65), Singapore (1.79), China (1.92), and Thailand (1.94). The United
States is slightly below the replacement rate (2.05). As the developing
countries become developed, they will clearly head in the direction of China,
Thailand, and Japan. Just a decade or two ago China had a population
crisis — no longer. Among the factors accounting for the population decline are
women's education (which has been called the world's most powerful
Megatrends in the Use of Force
contraceptive) and a world decrease in male sperm count (not fully
understood, but perhaps due to increasing use of pesticides in agriculture and
medications in animal farming) .
If a Malthusian surplus of people theoretically renders human life cheap, a
shortage of people is rendering human life increasingly dear. Since I am talking
about value, anecdotal evidence can be useful. In past centuries and through
much of the twentieth century, parents could "tolerate" the loss of two or three
sons in a war; there were more siblings back home. Today there is no tolerance
for the loss of a single life in war. Many countries are demilitarized, and with the
increase in democracy throughout the world, public opinion wants nothing to
do with military adventurism. American foreign policy in Bosnia today, where
American troops are stationed along with other NATO forces, is dominated by
a fear of "body bags" returning home. Moreover, the inevitable fatal accidents
that occur in the course of military training and exercises are now getting
enormous media attention; a few decades ago they were not even noticed.
American special forces sent abroad for "police action," such as in Somalia a
few years ago, are schooled in the doctrine that individual survival comes first:
don't begin a mission unless you have a safe individual "exit strategy." Gone,
maybe forever, is the World War II ethic of individual sacrifice to further some
generalized military policy (though some fundamentalist countries can still
muster fighting forces under the guise of religious obligation). During the
Second World War, the number of lives lost to "friendly fire" was not revealed;
parents were notified that their sons had been killed in action. Today,
pervasive media coverage makes it difficult to hide a tragic loss due to friendly
fire, and when any is revealed, public reaction is instantaneously critical.
Television. First came motion pictures, then television. They have changed
human life on earth, not just because underdeveloped countries can see how
people live in developed countries and want to get there too, and not just
because global news makes faraway places and events seem close and relevant.
Rather, what is important is the creation by the entertainment media of
empathy for other people's lives. The stories told on television — the series and
"made-for-TV" films — feature the individual, and they use audio-visual tricks
and special effects to establish empathy between the viewer and the image of a
person on the screen. We are caught up in the lives of these actors in their
fictional stories, and we share their hopes and fears. Viewers learn to care about
what happens to these actors in their compelling dramas. David Hume in the
eighteenth century discussed the "moral sentiment" — that facility of people to
sympathize (a better word for his purposes perhaps would have been
Anthony D'Amato
"empathize") with the inner feelings of others when they recognize the external
signs of those feelings. A stranger who is obviously in pain can evoke a sort of
virtual pain in the observer. 0( course, Hume knew nothing about moving
pictures; he lived before the invention even of photography. Perhaps he would
have been astounded if he could have seen how easy it is for people to
empathize with motion pictures of other people, even when they know those
other people are only acting.
Soldiers, of course, are trained to disregard the human feelings and
sentiments of the enemy. War propaganda often demonizes enemy
combatants, downgrading the enemy to a subhuman level. Group values are
promoted at the expense of individual values. For example, if we look back at
the movies of the Second World War, we find that most of them feature an
ensemble of leading players (in contrast to the superstar of today), and usually
one of them dies in action in the course of the picture. Although the death is
temporarily mourned, it is soon overshadowed by the military glory of the
successful ending. Hollywood did its best to emphasize group values, but it was
not easy to do. There is an underlying logic of motion pictures and television
that makes the images and stories most compelling when they portray the
drama of an individual, empathetic hero. When John Wayne was in a World
War II movie, he could not die (if he did, the box office would die too). His
movies suggest an uneasy directorial struggle between group heroics and
Waynish heroics, and somehow his films viewed today seem less realistic as war
cinema because of his strong presence.
"Smart" Weapons, The development of "smart" weapons that home in on
their targets means that the mass and indiscriminate killings of World War II
are no longer a necessary part of warfare. The number of personnel in national
army groups, has accordingly decreased; smaller-sized "mobile," "elite," and
"special forces" units are taking the place of armies, divisions, and regiments.
The new soldier — more mechanized, trained, and deadly — is correspondingly
more valuable than his or her historical counterpart. The American F/A-18
Hornet, both a fighter (F) and attack (A) aircraft, can carry up to three tons of
smart bombs and missiles.
A striking difference between World War II and today is the case of the
aircraft carrier. In 1940-1945 it was the single most expensive and effective
weapon, and it was nearly invulnerable. Today its cost and effectiveness are
still enormous when used against many adversaries; what has changed is
vulnerability. The U.S. carriers in the Seventh Fleet, shuttling
opportunistically between the Middle East and the Formosan straits, are a
Megatrends in the Use of Force
formidable presence in both theatres. Yet the carrier is virtually helpless against
a nuclear missile attack. A single missile discharged from a submarine many
miles away can obliterate an aircraft carrier. The carrier is like Goliath, who
was the most powerful individual of his time and place: although retaining his
power, he abruptly became vulnerable to David's slingshot.
It is mostly a historical coincidence that smart weapons have been
developed at the same time that human life has become more valuable. The
two trends work hand in hand, but they have very little intrinsic connection.
Scientists and technicians have always had sufficient motivation to develop
accurate and smart weapons; they did not need any extra humanitarian
motives. 7 Moreover, there are contrary trends. The same scientists and
technicians have developed nuclear weapons of unprecedented and
indiscriminate destruction. But a nuclear missile can be accurate or not,
depending on its use. It can be thought of as having pinpoint accuracy if
launched upon an aircraft carrier at sea, while a counter-value attack upon a
city is the antithesis of military accuracy. Another contrary trend is the blurring
of the distinction between civilian and combatant. Guerrilla fighters who wear
civilian clothes invite their opposition to attack indiscriminately — as was
discovered, among other places, in Vietnam. And with extreme perversity,
guerrillas can turn on defenseless people, as did the Shining Path in Peru in
recent years. Much of the killing and the setting up of "detention camps" in the
former Yugoslavia in the 1990s was traceable to the lack of military uniforms or
insignia on many of the soldiers, a legacy of the effective resistance movements
in Yugoslavia during World War II.
Smart weaponry means that governmental officials are not totally safe if they
initiate war. As a result, wars of international aggression have become
extremely unlikely. Most wars since World War II have been limited, internal
wars (Korea, Vietnam, Nicaragua, Yugoslavia) or border disputes. Iraq's attack
on Kuwait was the anachronism that proves the rule, and even then from
Saddam Hussein's point of view it was aimed at a territory that he said
historically belonged to Iraq. Perhaps the most instructive example is, again,
that of Japan. Not only is it demilitarized but also it has decided that armies are
economically wasteful. Recently, as North Korea proceeded to develop a
nuclear capability, Japan appeared to view the situation with equanimity. The
United States seemed to be far more worried about nuclear proliferation into
North Korea than was Japan, even though Japan was nearby and vulnerable. If
the North Korean government thought that its internal economic problems
could be solved by diverting scarce resources to achieve a nuclear capability,
they could have learned from De Gaulle's force de frappe. France's nuclear
8
Anthony D'Amato
weapons appear to have done absolutely nothing for France's well being or life
style; instead, the program has been immensely costly and remains so (as
France continues to have to bribe the Polynesians to allow an occasional
nuclear testing program in the South Pacific). France's neighbor Germany has
achieved greater clout in the European community by not diverting any of its
manufacturing energy to nuclear weapons.
Clash of Civilizations?
Irrational reasons that can impel a nation to war include religion and
nationalism, which are of course the two most historically important factors
leading to war. Nationalism can be held with the fervor of religious
commitment (consider the Rousseauean notion of "civil religion"), yet I think
that nationalistic wars have peaked in the nineteenth and twentieth centuries.
It was never an easy matter for governments to stir up their citizens to go to
war, and now that government elites are looked upon with more distrust than
ever — coupled with the increasing value accorded to human life — I suspect
that wars oi aggression between nations will become increasingly rare.
Religion, cutting across national boundaries, is a more likely candidate to
precipitate international conflict.
Samuel Huntington identifies the major contemporary civilizations as
Western, Confucian (Sinic), Islamic, Japanese, Hindu, Latin American, and
perhaps African. 8 All of these have a distinctly religious core. His article in
Foreign Affairs published in the summer of 1993, entitled "The Clash oi
Civilizations?" instantly became a focal point of discussion around the world.
Perhaps much of the attention accorded to the article was due to the fear
evoked by the possibility oi a military clash between two huge civilizations,
plunging the world into a genocidal war that could dwarf the first two world
wars. The problem was that Professor Huntington never defined what he
meant by "clash." That word can refer ambiguously to encounters ranging from
the cultural clash of rock music and country and western music, to the religious
clash of two professors of theology debating alternative interpretations of the
Dead Sea Scrolls, to the culture shock of Western women visiting
fundamentalist Muslim countries and seeing obvious signs of female
subordination to men, to outright military encounters, as among the Croats,
Muslims, and Serbs in the Former Yugoslavia.
Professor Huntington followed up his article with a book, whose title, unlike
that of the article, did not end with a question mark. After considerable
historical material and various statistical tables, The Clash of Civilizations and
Megatrends in the Use of Force
the Remaking of World Order ends with a possible scenario of a global war
breaking out in the year 2010. China claims that it will establish full control
over the South China Sea; "The Vietnamese resist and fighting occurs between
Chinese and Vietnamese warships." 9 The United States dispatches a carrier
task force to the area. China responds by launching air strikes against the task
force. Japan sides with China, one thing leads to another, and soon Russia,
Europe, and "most of Islam" are drawn in to a "global civilizational war."
Professor Huntington concludes, "If this scenario seems a wildly implausible
fantasy to the reader, that is all to the good." 10 But the first question that a
reader should ask is not the implausibility of the scenario (after all, there are
millions of implausible scenarios that people could envision), but how it relates
to Professor Huntington's thesis. China and Vietnam are part of one
civilization as defined by Professor Huntington — the Sinic civilization. 11 Thus,
if his scenario begins as a conflict between China and Vietnam, it is not a clash
between civilizations but a clash between two States having the same
civilization. Such a clash may or may not occur; indeed, anyone could predict a
clash between any two contiguous States and be as likely as Professor
Huntington to be right or wrong. It is surprising that Professor Huntington
would choose as the linchpin scenario of his book a conflict that has nothing to
do with the thesis he is advocating. Yet it is not an isolated example of the
sprawling nature of his thesis. In many previous chapters he recounts clashes
within civilizations, especially focusing on wars in Islamic countries. The
recent wars between Iran and Iraq, and between Iraq and Kuwait (and Saudi
Arabia, ostensibly the next target had Saddam Hussein succeeded in holding
on to Kuwait), are clearly wars within a civilization.
There is some plausibility in the idea that if an irrational war is to occur, the
irrational reason for the war may be rooted in religions or civilizations.
However, picturing how it is supposed to occur is really the crux of the matter.
Professor Huntington may have felt the logical imperative to supply at least one
scenario in his book so as to answer the question of how. But the scenario he
chose illustrates nothing so much as the poverty of his thesis. The thesis boils
down to saying that wars can occur within civilizations as well as between
them. One then has to ask what civilizations have to do with it.
The Corporate World
With the accelerating global market, multinational corporations are
increasing in size and influence. They are not downsizing. Corporate mergers
and acquisitions throughout the world appear greatly to exceed corporate
10
Anthony D'Amato
divestitures and spin-offs, not only for reasons of economic efficiency but also
because of the increasing separation of owners and managers. Shareholders in
corporations rarely exercise meaningful control of operations; instead their
fiduciaries — corporate executives and managers — have a free hand. These
managers try to hold onto and augment their power, which means, effectively,
that companies will grow even if growth is not in the economic interest of the
shareholders.
Governments, on the other hand, are downsizing. With the decline of
international wars, they have less justification for taxing their citizens; as tax
revenues level off or decline, government services are cut back or privatized,
and as a consequence the pressure for downsizing increases.
If we compare multinational corporations with governments, we find not
only that the former are upsizing while the latter are downsizing but we also
find that many corporations have assets that exceed those of many
governments. Perhaps the majority of the approximately 190 States in the
world today do not collect as much as eight billion dollars a year in taxes — the
net income of General Electric Corporation. 12 Microsoft Corporation, which
has been in existence for less than a quarter of a century, currently earns $3.5
billion a year, more than the tax revenues of many States that have been in
existence for centuries. 13 There are other considerations useful in comparing
multinational corporations with government.
Corporations tend to exert far more power over their employees' daily lives than
governments exert over their citizens. (True, an employee can quit her job just
as a citizen can renounce her nationality, but there is no safe haven in either
case — one simply goes to the next corporation or the next country.)
Unlike governments, corporations do not have a specific territory to defend.
They branch at will throughout the world, setting up offices, factories, service
centers, etc. More importantly, they establish subsidiaries in many countries.
Technically a corporation's legal identity is dependent upon its charter in its
original State of incorporation, 14 however, multinational corporations these
days — in the unlikely event of hostility from the original State of
incorporation — have the hydra-like ability to phase out their main office and
reincorporate in another State. 15 Peter Drucker has called attention to the fact
that multinational corporations are slowly becoming transformed into what he
calls "transnational corporations." 16 Whereas a multinational corporation sets
up subsidiaries that are essentially clones of the parent company, a
transnational corporation only localizes selling, servicing, public relations, and
legal affairs; parts, machines, planning, research, financing, marketing, and
pricing are conducted in specialized locations, so that a given subsidiary in a
11
Megatrends in the Use of Force
given country might receive parts from all the other subsidiaries and simply
assemble the final product locally. Thus, if any government takes over any of
the subsidiaries, it will take over an essentially worthless operation; the
corporation will simply cease shipping the component parts to that taken-over
subsidiary. Drucker says "successful transnational companies see themselves as
separate, nonnational entities." 17 As global financial markets become
consolidated (twenty-four-hour trading worldwide), there will be less reason
for US corporations to maintain their US nationality. They may gain a tax
advantage by moving to a foreign haven, and there might be little loss in
abandoning their American identity as far as share prices and financial liquidity
are concerned.
Unlike governments, corporations are not burdened with social responsibility. A
government — even the most dictatorial — believes that the welfare of its
citizens is its responsibility. In contrast, corporations will not take on any social
responsibility — even as to their own employees — that would result in a loss of
long-term profitability. 18
Nearly every corporation has its own security personnel. The number of private
police personnel employed in the United States greatly exceeds the number of
public police officers. Private security persons are usually armed and can legally
use force within their corporate jurisdictions. In addition, there are many
private companies that lease temporary security persons to corporations to
police special events. As I walk to my office, I sometimes see a Northwestern
University police car. It is painted the same colors as a regular police vehicle
and has Mars lights on its roof. The persons in the car are uniformed like
regular police and carry weapons. The word "POLICE" is painted on the
side — and underneath it, in a somewhat smaller font, "NORTHWESTERN."
The Internet has vastly enhanced the power of corporations, not just because it
allows them to communicate inexpensively with all parts of their production
and marketing processes, but because it gives them a new ability which is now
in its earliest stages. I am talking about the trend toward electronic banking.
Banks already engage in wire transfers of money, but when corporations start
doing it among themselves — bypassing banks in the process — the result will be
to take monetary control out of the hands of governments. A nation-state will
not much longer be able to block its currency or restrict capital movements. It
is hard to exaggerate the immense loss of power that governments will
experience when international monetary transfers are completely privatized.
Corporations are increasingly outsourcing many of their functions and modes of
production. They regard themselves as being in the knowledge business, not the
production business. In addition to advertising, which traditionally has been
12
Anthony D'Amato
placed through outside agents, outsourcing includes plants and factories,
payroll, and most recently employees. Specialized companies with names like
"Manpower," "Labor Ready," "Account Temps," "Billing Concepts,"
"Catalytica," "Data Processing Resources," "Staff Leasing," and "AccuStafP
now provide U.S. corporations with temporary employees who are ready to
handle just about every function that the corporation used to provide. The
more functions that corporations outsource, the less vulnerable they are to
government regulation, unionization, seniority demands, and natural disasters.
The huge power and confined responsibility of multinational corporations
lead to the speculation that they, and not necessarily States, may become the
major warring antagonists of the future.
A corporation lives on profits. Although the path of least resistance toward
profitability is raising prices, the obstacles on that path are competition and
substitution by consumers of alternative goods or services. 19 A corporation can
do little about the "substitution effect," but it certainly can spend a great deal of
its energy combatting competitors. The marketplace prefers that this "combat"
take the form of increased productive efficiency. But it can also take the form of
monopolization and destruction of the competitor. Destruction can be
accomplished by predatory pricing (outlawed by U.S. antitrust statutes, but
when we are talking globally, there is opportunity for predatory pricing in other
countries who either do not have antitrust laws or enforce them laxly).
Monopolization is the preferred route. A company receives a limited term
monopoly for some important forms of intellectual property such as copyright
and patents, and an unlimited term for others such as trademarks. Trade
secrets in many countries receive forms of judicial protection. However,
intellectual property is a benign form of monopolization, because it strikes a
legal balance between rewards innovation and temporal limits on that
innovation.
The more crude form of monopolization is by use of stealth and force.
Industrial spying is big business. Manufacturing processes, trade secrets, and
software engineering are some valuable industrial targets for corporate
"intelligence" operations. However, we have not yet seen the overt use offeree
against competitors on any significant scale, even though recently there have
been numerous accounts of specific assassinations of corporate executives and
entrepreneurs in Russia and in some of the other States of the Commonwealth
of Independent States.
What if someday corporations add military force to their outsourcing, and
organizations spring up with names such as "Mercenaries, Inc.," "Battle
Ready," "Armada Resources," "Guerrilla Temps," and "Spy Concepts"? These
13
Megatrends in the Use of Force
outfits would do dirty work for hire. One such organization already exists,
although so far it refuses to be hired by private corporations and limits its
services to governments. The organization, based in South Africa, is called
"Executive Action." 20
Corporate "greed" and "rapacity" in the business "jungle" are part of
everyday language. As business enterprises exceed governments in assets and
power around the globe, will we begin to see forceful manifestations of these
terms? The history oi the British East India Company may shed some light on
the matter. For two and a half centuries it enriched its stockholders, and its
tariffs fueled the expansion of the British parliament from a small organization
to a powerful central government. 21 The company was founded on December
31, 1600, by a charter from Queen Elizabeth that gave it exclusive trading
privileges with the East Indies. Apart from being allowed to arm its vessels, the
company was barred from engaging in any forms of conquest or colonization.
However, as the years passed, it increasingly got involved in the use of force. At
first force was used defensively — against depredations from Portuguese and
Dutch vessels and outposts in India and the Orient. But then, under the theory
that the best defense is a strong offense, the British East India Company
increasingly engaged in military campaigns, becoming a colonial arm of the
British government until its entire absorption by that government in 1857.
Perhaps if there had been no competition from Portugal and Holland the
picture would have been a peaceful one oi trade and enrichment. But
competition is endemic in business. Standard economic theory says that "pure"
competition forces prices down to the point where profits vanish entirely.
Hence, competition is an ever-present threat to the continued existence of
corporations.
The military clashes between the British and Dutch East India companies in
the seventeenth and eighteenth centuries in Southeast Asia were made
possible by the weakness of local governments in that area. Today, in most
parts of the world, governments are still strong enough to deter corporations
from resorting to armed force in the battle against their competitors. But as
governments downsize and corporations become more powerful, the situation
may change.
If the situation changes, will "international law" apply to intercorporate
warfare? Or will there be a new "intercorporate law," analogous to
international law? If such law arises, who will enforce it? Perhaps the largest
multinational corporations will set up a global board of governors with enough
power to prevent smaller competitors from using force, thus insulating
themselves from competition. But the new law they promulgate and enforce
14
Anthony D'Amato
may not be informed, as international law is, by elementary notions of morality.
International law reflects many moral norms (e.g., military humanitarian law,
the laws of war, laws of state responsibility for torts, and the general principle oi
the equality of states), but perhaps that is because the nation-states that have
generated that law are themselves the moral repositories of their citizens.
Corporations, as I have mentioned, have no moral imperative; their goal is
simply to make profits. Hence, a world intercorporate law may be morally
barren, unequal in its application, dictated from above, and unchangeable from
below. We could be heading toward world fascism. I hope I am wrong, but it
doesn't hurt to be vigilant.
Notes
1. Japanese merchant marine tonnage declined (existing stocks plus new ships built minus
losses on the high seas) moderately in 1941 and 1942, more steeply in 1943, and then
precipitously in 1944 and 1945. TAKAFUSA, LECTURES ON MODERN JAPANESE ECONOMIC
HISTORY 1926-1994, at 113, table 3.3 (1994).
2. PONTING, ARMAGEDDON 121-22 (1995).
3. The Doctrine of Comparative Advantage was suggested in the writings of Adam Smith
and was articulated more fully by David Ricardo in 1817. The mathematics works roughly as
follows. State P can produce rowboats and canoes more efficiently than Q can produce either
one. Suppose P and Q utilize all their labor in producing just these two products. P can produce
ten boats or five canoes a day utilizing all its labor. Q can produce six boats or one canoe a day.
Since P is the more efficient producer both of boats and canoes, how can trade mutually benefit
both P and Q? In the following way: Prudence owns one canoe in P. Within P, she can exchange
her one canoe for two boats (because, within P, it costs twice as much to produce a canoe than a
boat). She then travels to Q and exchanges her one canoe for six boats (because within Q, it
costs six times as much to produce a canoe than a boat) . With her six boats, she travels back to P,
and exchanges the six boats for three canoes. Then she takes the three canoes back to Q, where
she can exchange them for eighteen boats. Back to P, she exchanges her eighteen boats for nine
canoes, and so on back and forth until Prudence is the richest person in both countries.
In practice, of course, this does not happen. Everyone will soon catch on to the international
arbitrage that Prudence is practicing. Traders will export canoes from P into Q, and import boats
from Q into P. Manufacturers in P will conclude that so long as trade is going on with Q, they will
be better off producing only canoes. Conversely, manufacturers in Q will conclude that they are
better off producing only boats. The canoe manufacturers in P and the boat manufacturers in Q
will be producing at their own optimum efficiency; everyone in P and Q will be better off because
the "price" of a canoe will stabilize at somewhere between two and six boats, and the "price" of a
boat will stabilize at somewhere between one-half and one-sixth of a canoe. These prices will be
better for the customers in both P and Q than the prices they would have had to pay if there was
no international trade between P and Q. (Nothing changes in this example if we introduce
money as an exchange mechanism.)
4. Krugman, Pop Internationalism 91 (1996).
5. I am collapsing a lot of psychology here. It appears that our cerebral cortex, in an attempt
to maintain verbal control over our actions, convinces itself (that is, convinces ourselves) that it,
15
Megatrends in the Use of Force
and not our baser emotions, is in command. We accept these rationalizations (indeed, we have
no choice, because our own minds have furnished them) . In fact, we are not in rational control of
our actions and decisions, but we think we are. Now if we multiply this phenomenon by hundreds
of thousands of minds within a State, and the "head" of government whips up mass emotions to
resort to military force while at the same time providing verbal rationalizations for the need to do
so, we have war hysteria that tends to sweep along even the most rational thinkers.
6. Crossette, How to Fix a Crowded World: Add People, N.Y. TIMES, Nov. 2, 1997, at sec. 4,
p. 1.
7. See generally GEORGE & MEREDITH FRIEDMAN, THE FUTURE OF WAR (1996).
8. Huntington, The Clash of Civilizations and the Remaking of World
Order 45-47 (1996).
9. Rat 313.
10. Rat 316.
11. Id. at 45: "The term 'Sinic,' which has been used by many scholars, appropriately
describes the common culture of China and the Chinese communities in Southeast Asia and
elsewhere outside of China as well as the related cultures of Vietnam and Korea."
12. The approximation in the number of States is due to the difficulty of categorizing some
entities as States, e.g., Vatican City, the Isle of Man, Puerto Rico.
13. Microsoft was founded in 1975.
14- Barcelona Traction Case (Belg. v. Spain), 1970 I.C.J. 3.
15. Some U.S. tobacco companies have recently begun to move their main offices out of the
United States in the face of increasing governmental regulation of cigarette smoking. Although
they are still U.S. companies, it would not be surprising some day to find that they have been
quietly phasing out their U.S. identity and abandoning their U.S. nationality.
16. Drucker, The Global Economy and the Nation-State, 76 FOREIGN AFFAIRS 159 (1997).
17. Rat 168.
18. Some Japanese corporations have professed a responsibility to their employees' welfare
even at the expense of profitability. But in the past few years, with the severe downturn in the
Tokyo stock market, many of those same corporations are revisiting their policy of corporate
benevolence. Globally, there are some corporations that have taken short-term losses to support
some socially benevolent policies, but I know of no corporation (other than not-for-profit
"corporations") that will accept a decline in long-term profitability in order to engage in a
program of social welfare.
19. Where substitution is not possible, there is a "natural monopoly" that governments are
quick to regulate, such as the provision of electricity, water, mail, and telephone service.
However, the recent movement to deregulation has seen competition for the post office (the
Netherlands has entirely privatized its post office, while other countries have developed private
air courier services), a proliferation of competing telephone companies, and the beginning of
other alternatives (bottled water, home generators) .
20. This company was described on the CBS News show "Sixty Minutes" under the heading
"Dogs of War," aired on June 1, 1997. For a transcript, contact CBS News, 524 West 57th Street,
New York, NY 10019. '
21. See generally LAWSON, THE EAST INDIA COMPANY: A HISTORY (1993).
16
II
The Universality Principle
and War Crimes
Yoram Dinstein
O
I
NE OF THE MOST FUNDAMENTAL TENETS of international law is
that it determines the permissible limits of the jurisdiction of States. 1
While issues relating to the exercise of State jurisdiction may extend to every
aspect of human conduct, the crux of the matter is criminal jurisdiction.
Criminal jurisdiction is vested in a given State only when there exists between
that State and either the specific offense or the alleged offender a legitimate
link, that is to say, a link which is legitimate in the eyes of international law. In
the absence of such a legitimate link, the State is not entitled to assert criminal
jurisdiction.
Five principles have emerged in international law as legitimate bases for the
exercise of the criminal jurisdiction of States over alleged offenders.
• Territoriality, namely, the fact that the offense was committed within the
territory of the State asserting jurisdiction (including ships and aircraft
registered therein). Although this is ostensibly the simplest base of criminal
jurisdiction, it must be appreciated that the question of whether an offense
actually takes place within the territory is not always easily answered. Above
The Universality Principle and War Crimes
all, it is difficult to determine when an act committed outside — yet having
effects inside — the territory comes within the scope o( legitimate criminal
jurisdiction. 3
• Nationality of the alleged offender (or "active personality") , namely, the fact
that the person charged with the offense is a national of the State asserting
jurisdiction. In most instances in which criminal jurisdiction is exercised by a
State, the circumstances would satisfy both the territoriality and the active
personality principles, inasmuch as the criminal act is perpetrated by a national
within the geographic confines of the home country. Hence, the real need for
invoking the active personality principle per se arises chiefly when the offense is
committed by a national extraterritorially. The active personality principle
usually also covers non-nationals serving the State in different capacities (such
as members of the diplomatic service or of the armed forces), and at times it is
even extended to permanent residents.
• Nationality of the victim of the offense (or "passive personality"), namely, the
fact that — irrespective of the situs of the offense and the nationality of the
perpetrator — the victim is a national, or conceivably even a permanent resident,
of the State asserting jurisdiction. Strong opposition has often been expressed
against the passive personality principle when standing alone, viz-, when a
national of State A is prosecuted by State B for criminal activity affecting
nationals of State B carried out within the boundaries o( State A (or even State
C). 4 All the same, in at least some settings the passive personality principle is too
well entrenched in State practice today to be seriously contested. 5
• Protection of certain vital national interests of the State, namely, authorizing a
State to exercise criminal jurisdiction irrespective of location or nationality
(even when the alleged offenders are foreigners and they acted
extraterritorially). The "protective" principle is circumscribed to acts against
the national security of a State; counterfeiting its currency, national emblems,
seals or stamps; forgery, fraud or perjury committed in connection with official
documents, especially passports and visa permits; and improper use of or insult
to the national flag. 6
• Universality , namely, "the authority of the State to punish certain crimes
wherever and by whom [soever] committed." 7 This authority, which is vested
in every State regardless of territory and nationality, is limited to the exercise of
jurisdiction over delicta juris gentium (i.e., acts defined as crimes by
international law). The view that the universality principle encompasses
"common crimes such as murder," although shared by several scholars, is not in
conformity with customary international law. 8 Had the universality principle
been applicable to a broad range of ordinary crimes, there would be no raison
18
Yoram Dinstein
d'etre for the other bases of jurisdiction. After all, universal jurisdiction's
"limitless scope renders all other forms of jurisdiction superfluous." 9 The
universality principle must be looked upon as an exceptional measure granting
the State special extraterritorial powers. It is limited to specific offenses defined
by international law, and it must be exercised strictly in accordance with
limitations imposed by that law.
Actually, the universality principle does not apply in an automatic fashion to
all international offenses, although there seems to be a presumption today in
favor of such application. 10 A prime example of an international treaty, which
defines an international offense yet explicitly adheres to the territoriality —
rather than the universality — principle, is that o( Article 6 of the 1948
Convention on the Prevention and Punishment of the Crime of Genocide. 11
n
The universality principle is strongly rooted in customary international
criminal law. The incontrovertible "prototype" 12 is the age-old law for the
suppression of piracy (currently codified in Article 105 o{ the 1982 United
Nations Convention on the Law of the Sea). 13 Over the last few decades,
universal criminal jurisdiction has been extended to numerous other offenses
by conventional international law (see infra) , and in at least some instances the
extension has in all likelihood already crystallized into generally binding
custom.
The proposition that belligerent States are accorded an international legal
right to prosecute members of the enemy armed forces charged with war crimes
has long been doctrinally recognized; 14 and was authoritatively restated in the
early part of the twentieth century. 15 It was reaffirmed in connection with the
horrendous war crimes of World War II, even prior to the postwar trials. 16
These trials have had a salutary impact on the progressive development of
international law in general (e.g., insofar as the evolution of the separate
concept of crimes against humanity is concerned). 17 One of their invaluable
achievements is that the postwar trials removed any plausible doubt that might
have lingered about the practice of States confronted with war crimes. The
trials established, first and foremost, that all belligerents into whose hands war
criminals have fallen can exercise concurrent jurisdiction. 18 The trials further
demonstrated that belligerent States have jurisdiction over war crimes
perpetrated by enemy civilians as much as by members of the enemy armed
forces. 19 Additionally, the trials made it plain that a belligerent State is entitled
to bring to justice not only enemy nationals but also nationals of allied or
19
The Universality Principle and War Crimes
neutral States, 20 and that it can even assume jurisdiction over war crimes
committed before its own entry into the war. 21 The corollary is that neutral
States can equally prosecute belligerent war criminals. 22
In the Eichmann trial, the Israel Supreme Court — which unequivocally
endorsed the application of the universality principle to war crimes 23 — arrived
at the conclusion that "no importance attaches to the fact that the State of
Israel did not exist when the offenses [including war crimes] were
committed." 24 This position has been reinforced by the judgment of the United
States Court of Appeals (Sixth Circuit) in the Demjanjuk case of 1985:
Further, the fact that the State of Israel was not in existence when Demjanjuk
allegedly committed the offenses is no bar to Israel's exercising jurisdiction under
the universality principle. When proceeding on that jurisdictional premise,
neither the nationality of the accused or the victim (s), nor the location of the
crime is significant. The underlying assumption is that the crimes are offenses
against the law of nations or against humanity and that the prosecuting nation is
acting for all nations. This being so, Israel or any other nation, regardless of its
status in 1942 or 1943, may undertake to vindicate the interest of all nations by
seeking to punish the perpetrators of such crimes. 25
The extension of the purview of jurisdiction over war crimes of all stripes is
perfectly justifiable. The import of bringing the universality principle to bear
upon war crimes is that all States without exception — rather than merely
belligerent States — are possessed of the power to mete out justice to any war
criminal and that they can ignore the geographic, temporal, or national
dimensions of the offense. 26 While some scholars continue what may be called
a rear-guard action against acceptance of the universality principle as
appertaining to war crimes, 27 by now it must be abundantly clear that the issue
has been settled in customary international law. 28 Patently, war crimes can be
assimilated to piracy in the frame of reference of universality of jurisdiction. 29
The four Geneva Conventions of 1949 for the Protection of War Victims
include a common stipulation governing "grave breaches" o( these
instruments:
Each High Contracting Party shall be under the obligation to search for persons
alleged to have committed, or to have ordered to be committed, such grave
breaches, and shall bring such persons, regardless of their nationality, before its
courts. It may also, if it prefers, and in accordance with the provisions of its own
legislation, hand such persons over for trial to another High Contracting Party
concerned, provided such High Contracting Party has made out a prima facie
case. 30
20
Yoram Dinstein
In accordance with Article 85(5) of the 1977 Additional Protocol I to the
Geneva Conventions, the grave breaches referred to (as well as those
supplemented by the Protocol itself) "shall be regarded as war crimes." 31
In the opinion of the present writer, the text of the common clause of the
Geneva Conventions constitutes a pellucid expression of the universality
principle. True, this is not unanimously avowed. One eminent scholar argues,
"The view that the 1949 Geneva Conventions provide for universal
jurisdiction, though sometimes asserted, is probably incorrect." 32 But surely,
the correct interpretation of the Geneva text is the one offered by
Hans-Heinrich Jeschek:
According to the Geneva Conventions of 1949, signatory States are not only
empowered to punish war crimes, but also are obliged to do so, unless the accused
is extradited to another signatory State (out dedere aut punire). The duty to
punish attaches not only to the States to which the accused owes his allegiance
or to the injured State, but to all the signatory States; this duty even extends to
neutrals in an armed conflict, and it exists without regard to the nationality of
the perpetrator or victim or to the place where the crime took place. Hence the
Geneva Conventions provide universal jurisdiction for the punishment of war
crimes coupled with a duty to prosecute, since the goal is the protection of
common and universal interests. 33
It is sometimes contended that only more serious war crimes (like the grave
breaches of the Geneva Conventions) — rather than war crimes of a technical
nature — activate the universality principle. 34 But this is a misconception. The
correct view is that technical violations of the laws of war simply do not
constitute war crimes. 35 Once violations of the laws of war qualify as war
crimes, all come under the sway of the universality principle.
In 1996, the International Law Commission defined War Crimes in Article
20 of its Draft Code of Crimes against the Peace and Security of Mankind. 36
Although, in part, the definition may give rise to debate, 37 it mostly consists of
grave breaches of the Geneva Conventions and Protocol. 38 Article 8 of the
Draft Code 39 "establishes the principle of the concurrent jurisdiction of the
national courts of all States parties to the present Code based on the principle
of universal jurisdiction" for crimes set out in Article 20. 40
Ill
The universality principle embraces solely offenses established and defined
by international law, with a view to protecting the interests of the international
21
The Universality Principle and War Crimes
community in its entirety. It must not be confused with the protective
principle, which applies to the national interests oi individual States. Both
principles admittedly lead to a similar outcome: States may assert criminal
jurisdiction over foreigners acting extraterritorially. Nevertheless, the two
principles proceed from radically different points of departure. One principle is
designed to protect the single State against those trying to subvert its vital
interests. That single State, which is the only one affected, is exclusively
allowed to take action — no other State can invoke jurisdiction on its behalf
(although any State may act on the ground of territoriality or active personality
where appropriate). The second principle is equally protective, but it lends its
aegis to the collectivity of States (the "family of nations")- "It is founded upon
the accused's attack upon the international order as a whole." 41 All States are
supposed to have a stake in suppressing delicta juris gentium, and all are
simultaneously endowed with the authority to exercise criminal jurisdiction.
Consequently, as a rule, there cannot be a genuine overlap between the
universality principle and the protective principle. The present writer disagrees
with the reliance on the protective principle — as an auxiliary base of
extraterritorial jurisdiction, side by side with the universality principle — by the
District Court of Jerusalem (with the approval of the Israel Supreme Court), in
the context of genocide, in the Eichmann trial. 42 However, even if mass-scale
genocide directed at the entire Jewish people can be exceptionally construed as
impinging upon the vital interests of the State of Israel (albeit perpetrated
before the birth of the State), thereby triggering the protective principle, only
the universality principle is apposite to war crimes.
There is no similar disconnection between the universality principle, on the
one hand, and the territoriality, active personality, or passive personality
principles, on the other. Universality postulates the irrelevance of either
territory or nationality (of the victim as well as the offender). Still, if the
territorial State or the State of nationality — when actually asserting criminal
jurisdiction — prefers to act as such without invoking the universality principle,
nothing prevents it from doing so. International law enables any State to turn a
blind eye to the territorial or national link once universality is vouchsafed, but
there is no compulsion to do so. When a State prosecutes members of its own
armed forces who have committed war crimes, it benefits from an
incontrovertible advantage if it acts in the name of the active personality
principle rather than the universality principle. The trial can then be
predicated solely on the domestic military penal code and need not take into
account the limitations imposed on the State when availing itself of the special
powers emanating from the universality principle. 43 By contrast, if the State
22
Yoram Dinstein
wishes to prosecute enemy soldiers as war criminals, it has no alternative but to
act within the framework of the universality principle (unless the victims are its
own nationals or the crimes were committed on its territory) .
IV
When the universality principle is applicable, the outcome is concurrent
jurisdiction of all States. If all States acquire jurisdiction, all can exercise it.
Evidently, "[c]oncurrent jurisdiction is no obstacle to the exercise of
jurisdiction by any single-state." 44 Yet, when (as in the above -quoted text of the
Geneva Conventions) the universality principle is couched in a binding
language, amounting to a duty — rather than in a permissive manner simply
creating a right — the potential competition engendered by the multiplicity of
choices of forum must be addressed. Hence, the duty incurred under the
Geneva Conventions and other instruments is generally represented in
optional terms: either to render or to prosecute the accused. 45 Normally, the
Latin formula is adduced: out dedere autjudicare. The alleged offender can be
rendered to another State (principally through the mechanism of extradition)
for the exercise of foreign jurisdiction. 46 Still, when no such rendition takes
place (because extradition is either not sought or denied, or for whatever other
reason), there is a manifest duty to proceed with the exercise of local
jurisdiction. The main thing is that one State or another will exercise its
concurrent jurisdiction, so that an offender does not go scot-free.
All too often (perhaps especially where war crimes are concerned), there are
problems with both alternatives, judicare and dedere. States may be reluctant or
even unable to institute judicial proceedings themselves. In Theodor Meron's
words:
Universal jurisdiction over war crimes means that all states have the right under
international law to exercise criminal jurisdiction over the offenders. Most states
do not have the necessary resources or interest to prosecute offenders when the
state itself was not involved in the situation in question. Many states also do not
have national laws in place that allow them to prosecute offenders. 47
At the same time, extradition — if sought — is frequently frustrated for
technical or other reasons. 48
As against the all -too-familiar factual situation where no country is
overeager to prosecute war criminals, it is necessary to pose the reverse state of
affairs (however rare) wherein several countries vie to lay hands on the
accused, each desirous of exercising in practice its respective (concurrent)
23
The Universality Principle and War Crimes
jurisdiction. The question is whether any particular State, by dint of being more
closely linked to the case at hand, has a better claim and therefore priority.
No general rule regulating this matter has evolved in general international
law. It is noteworthy, however, that no less than ten conventions pertaining to
international criminal law have established a hierarchy formula in which a
measure of priority is conferred on certain States (without negating the
jurisdiction of others). The trail-blazing provision appears in Article 4 o( the
1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft,
which reads:
1. Each Contracting State shall take such measures as may be necessary to
establish its jurisdiction over the offence and any other act of violence against
passengers or crew committed by the alleged offender in connection with the
offence, in the following cases:
(a) when the offence is committed on board an aircraft registered in that
State;
(b) when the aircraft on board which the offence is committed lands in its
territory with the alleged offender still on board;
(c) when the offence is committed on board an aircraft leased without crew
to a lessee who has his principal place of business or, if the lessee has no
such place of business, his permanent residence, in that State.
2. Each Contracting State shall likewise take such measures as may be necessary
to establish its jurisdiction over the offence in the case where the alleged offender
is present in its territory and it does not extradite him pursuant to Article 8 to any
of the States mentioned in paragraph 1 of this Article.
3. This Convention does not exclude any criminal jurisdiction exercised in
accordance with national law. 49
What is the correct interpretation of Article 4? 5 In effect, the drafters of the
Convention set forth that every State has a right (and indeed a duty) to
exercise jurisdiction over the offense of aircraft hijacking. All the same, a
double -tiered structure of jurisdiction is constructed. There are three preferred
States with primary jurisdiction: the State of registration of the aircraft, the
State where the aircraft lands with the offender still on board, and the State of
the operator of the aircraft when it is on lease. 51 The expectation is that in the
natural order of things, one of the three preferred States will be able and willing
24
Yoram Dinstein
to exercise jurisdiction over the offender. However, should this not come to
pass owing to failure oi extradition, whichever State has the hijacker in its
hands is entitled and required to prosecute him, in keeping with the maxim out
dedere out judicare.
The double-tiered structure of jurisdiction (with different lists of preferred
States, as the subject matter dictates) is also adopted in the following
conventions pertaining to international criminal law:
• Article 5 of the 1971 Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation. 52 Here there are four
preferred States: the State of territoriality plus the three States enumerated in
the Hague Convention.
• Article 3 of the 1973 Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons, including Diplomatic
Agents. 53 The three preferred States are the State o( territoriality (explicitly
including ships and aircraft registered therein), the State of nationality, and the
State of passive personality (determined by virtue of function rather than strict
nationality).
• Article 5 of the 1979 International Convention against the Taking of
Hostages. 54 The four preferred States are the first two listed in the 1973
Convention (plus a discretionary jurisdiction over habitual residents who are
stateless), the target State, and (where the State considers it appropriate) the
passive personality State (based on the nationality of the victim).
• Article 8 of the 1980 Convention on the Physical Protection of Nuclear
Material. 55 The two preferred States are the first two indicated in the 1973
Convention (without reference to stateless persons). There is also a specific
reference in another paragraph to the State of export or import.
• Article 5 of the 1984 Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. 56 The three preferred States
are again the first two catalogued in the 1973 Convention (without provision
for stateless persons), and the last of the 1979 Convention.
• Article 6 of the 1988 Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation. 57 The three preferred States are the
flag State of a ship, the State of territoriality, and the State of nationality. Three
other States are on a lesser standing, but still preferred in relation to the rest:
the State of stateless habitual residents, the State of passive personality (based
on nationality), and the target State. The interests of the flag State in case of
several requests for extradition are particularly accentuated in Article 1 1 (5). 58
The priority claim of the flag State to exercise jurisdiction is still not absolute,
but it should have greater weight. 59
25
The Universality Principle and War Crimes
• Article 4 of the 1 988 United Nations Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances. 60 The two preferred States are
the State of territoriality and the State of the vessel flying its flag or the aircraft
registered in it. A lesser status is bestowed on the State of nationality or
habitual residence (irrespective of statelessness) and two additional special
cases.
• Article 9 of the 1989 International Convention against the Recruitment,
Use, Financing and Training of Mercenaries. 61 The two preferred States are the
first two enumerated in the 1979 Convention.
• Article 10 of the 1994 Convention on the Safety of United Nations and
Associated Personnel. 62 The two preferred States are the first two listed in the
1973 Convention. The 1988 Maritime Convention formula of three
semi-preferred States is also repeated.
In all, notwithstanding inevitable variations in the multifarious instruments,
the fundamental approach is the same. Whereas some preferred States are
endowed with primary jurisdiction — with no mandatory priority — what
emerges in the final analysis is universal jurisdiction. 63 It goes without saying
that none of the conventions cited is germane to the issue of war crimes. Still,
in future practice the nonbinding preference scheme may be looked upon with
favor in that setting too. As for the choice of the States with a preferred status,
judging by the trend highlighted in the conventions, it is probably safe to
prognosticate that the three States to be generally deemed most closely
connected to war crimes would be: the State of territoriality (including ships
and aircraft registered therein), the State of active personality, and the State of
passive personality.
Concurrent jurisdiction of all States over war criminals — in consequence of
the universality principle — means not only that the judicial authorities of each
State separately can sit in judgment over alleged offenders, but that any
combination of States can set up an international penal tribunal with a view to
carrying out the same mission on a multinational level. Thus, in the 1945
London Agreement for the Prosecution and Punishment of the Major War
Criminals of the European Axis (initially adopted by the four big powers — the
United States, the USSR, the United Kingdom and France — and later acceded
to by many other Allied nations), an International Military Tribunal was
established. 64 Pursuant to Article 6 of the Tribunal's Charter, it had
jurisdiction over war crimes as well as crimes against peace and humanity. 5
26
Yoram Dinstein
Following a celebrated trial conducted at Nuremberg, the 1946 Judgment
proclaimed that in creating the International Military Tribunal the
Contracting Parties to the London Agreement had "done together what any
one of them might have done singly." 66 In other words, given the umbrella of
the universality principle, either the United States or any other country could
have prosecuted Nazi war criminals while acting alone. In joining forces, the
Contracting Parties to the London Agreement merely pooled together their
resources, avoided competition and conflict, and ensured that justice would be
done.
This is also the best rationalization for the creation by the UN Security
Council, in Resolution 827 (1993), of the International Criminal Tribunal for
the Former Yugoslavia, 67 with subject-matter jurisdiction, inter alia, over grave
breaches of the Geneva Conventions and violations of the laws and customs of
war (Articles 2-3 of the Tribunal's Statute). 68 The legitimacy of the
establishment oi the Tribunal by fiat of the Security Council has been called
into question by some commentators against the background of the UN
Charter. 69 The Appeals Chamber of the Tribunal rejected at some length a
challenge to its jurisdiction on that score. 70 Without getting into this complex
issue, which is beyond the scope of the present paper, it must be perceived that
irrespective of the range of powers allocated in the UN Charter, the
establishment by the Security Council of an international penal tribunal with
jurisdiction over war crimes is sanctioned by the universality principle. The
Member States of the United Nations have done together what each of them
might have done singly. No doubt, universal jurisdiction "is not synonymous
with centralised jurisdiction," but the two are not mutually exclusive either. 71
When an international penal tribunal is installed for the trial of war
criminals, a problem that immediately comes to mind is whether the ordinary
option of aut dedere autjudicare endures and whether the international tribunal
has a status merely resembling that of an ordinary foreign court (with the same
loose guidelines of preference in extradition discussed supra). Article 9 of the
Statute of the Yugoslav Tribunal addresses the issue head on, and while
confirming the concurrent jurisdiction of national courts, decrees that the
Tribunal "shall have primacy over national courts" and that the Tribunal may
formally request the latter to defer to its competence. 72
The notion of primacy of an international tribunal over national courts was
assailed by the defense in the Tadic case. The Appeals Chamber of the
Yugoslav Tribunal held that when an international penal tribunal is created, "it
must be endowed with primacy over national courts," for otherwise stratagems
may be used to defeat the purpose of diligently prosecuting international
27
The Universality Principle and War Crimes
offenders. 73 The Tribunal's explanation is conspicuously valid; indeed, perhaps
the primacy concept should be construed within the ambit of that explanation.
Intervention by an international penal tribunal in national proceedings (when
a State wishes to exercise jurisdiction over a person in its custody) should not
be undertaken unless there is reason to suspect that otherwise international
justice is liable to be obstructed. In essence, this was also the opinion expressed
by several Permanent Members of the Security Council in the course of its
debates. 74
This brings up a related issue. One of the most salient human rights
recognized by contemporary international law is freedom from double
jeopardy: no one can be retried for an offense for which he has already been
finally convicted or acquitted by a competent court. 75 The pleas o{ autrefois
acquit or autrefois convict are universally accepted as effectively barring further
prosecution for the same offence.
Under Article 86 of Geneva Convention III, the principle oinon bis in idem
applies to prisoners of war, who may not "be punished more than once for the
same act or on the same charge." 76 This provision, which covers the
prosecution o( war criminals, is applicable when double jeopardy is derived
from the operation of judicial authorities in the territory of a single State. But
what about transboundary retrials of war criminals (or other international
offenders)? The matter seems to be unsettled in customary international law. 77
However, this writer believes that the concept oinon bis in idem should apply in
principle to attempts by courts of several States to prosecute the same person
for the same offense — while invoking the universality principle — no less than
it does to parallel attempts by courts of an individual State. There is in fact
doctrinal support for the position that a State ought to have no criminal
jurisdiction over persons who have already been prosecuted elsewhere for the
same offense. 78
A vexing issue arises, however, in the singular context of concurrent
jurisdiction over war crimes (and other international offenses). There may be a
disquieting apprehension that the judicial authorities of a particular State who
view the acts of the alleged offender with leniency (owing to ethnic, political,
ideological or religious motivations) would go through the motions of a sham
trial and either acquit him or impose on him — after conviction — a nominal
sentence, thereby thwarting the administration of justice. If justice is to be
done (and especially appear to be done), this apprehension must be dispelled.
Article 10 of the Yugoslav Statute handles this matter with finesse. 79 In
paragraph 1 it pronounces that no person shall be tried before a national court
28
Yoram Dinstein
for criminal acts for which he has already been tried by the International
Tribunal. Paragraph 2 provides:
2. A person who has been tried by a national court for acts constituting serious
violations of international humanitarian law may be subsequently tried by the
International Tribunal only if:
(a) the act for which he or she was tried was characterized as an ordinary
crime; or
(b) the national court proceedings were not impartial or independent, were
designed to shield the accused from international criminal responsibility,
or the case was not diligently prosecuted.
Paragraph 3 adds that in imposing a penalty the International Tribunal shall
take into account any sentence served by a convicted person as a result of an
earlier national trial.
Attention should be drawn to the fact that apart from the scenario of
spurious or biased national proceedings, the text o{ the Yugoslav Tribunal's
Statute also permits retrial if the original prosecution related to ordinary
crimes. This is quite sensible. As indicated by the International Law
Commission, should an individual be tried by a national court for a "lesser
crime" (that is, national rather than international), the prior decision of that
court should not immunize him from subsequent international proceedings
expected to "encompass the full extent of his criminal conduct." 80
The non bis in idem formula — used in the Yugoslav Tribunal's Statute — was
replicated in the 1994 Statute of the International Tribunal for Rwanda; 81 it
was followed by the International Law Commission (the same year) in Article
42 of the Draft Statute for an International Criminal Court. 82 However, the
formula does not come to grips with the prospect of a trial by a national court of
State A subsequent to a trial for the same offense by a national court of State B.
The International Law Commission, in Article 12 of its 1996 Draft Code of
Crimes against the Peace and Security of Mankind, after reiterating the same
formula in regard to international proceedings, goes on to specify that retrial by
a national court of another State is allowed if that other State is the territorial
State or was the main victim of the crime. 83 This is a most unsatisfactory
solution to the dilemma, applying as it does even in the absence of any claim
that the previous proceedings entailed a travesty of justice or that they were
other than impartial. This writer is convinced that the same formula ought to
29
The Universality Principle and War Crimes
apply to retrial by the national courts of another State as by an international
tribunal.
VI
There are three dimensions to the criminal jurisdiction of States under
international law: jurisdiction to prescribe (i.e., to legislate), jurisdiction to
adjudicate (i.e., to put on trial), and jurisdiction to enforce (i.e., to punish). 84
The need to distinguish between the three facets of jurisdiction becomes
prominent when the principle of universality is invoked, as in the case of war
crimes.
Jurisdiction to Prescribe, Ex hypothesi, once the universality principle applies,
no State is vested with jurisdiction to prescribe in the full sense of the term.
The major premise underlying the universality principle is that the forbidden
acts are delicta juris gentium, meaning that they have been criminalized by
international law. The State "must ensure that its legislation does not extend
the definition of the offense beyond the limits of international law." 85 It must be
fully appreciated that only acts branded as war crimes by international law are
subject to universal jurisdiction. Therefore, the domestic legal system is not
free to add its own versions of putative war crimes to the list prescribed (and
proscribed) by international law. Should the domestic legal system label as "war
crimes" acts not deemed war crimes by international law, the universality
principle would not be in effect. Only war crimes juris gentium can sustain a
claim to universal jurisdiction.
Jurisdiction to prescribe in the context of the universality principle has to be
understood in a different sense. Every State has a right — and indeed a duty — to
enact any enabling legislation required to lay the foundation for the domestic
prosecution and punishment of international offenders. Such enabling
legislation is ordained by each of the four Geneva Conventions of 1949: "The
High Contracting Parties undertake to enact any legislation necessary to
provide effective penal sanctions for persons committing, or ordering to be
committed, any of the grave breaches of the present Convention defined in the
following Article." 86
Jurisdiction to Adjudicate, Jurisdiction to adjudicate in criminal matters means
the prosecution and trial of offenders. Traditionally, jurisdiction to adjudicate
has been treated as "ancillary to jurisdiction to prescribe." 87 However, in the
case of the universality principle, every State is vested with jurisdiction to
30
Yoram Dinstein
adjudicate notwithstanding the absence of jurisdiction to prescribe in the full
sense of the term.
When a State exercises its universal criminal jurisdiction to adjudicate by
sitting in trial over war criminals, it must of course comply with all the
standards of due process of law, as demanded by international law. 88 The duty
devolving on a State in the absence of dedere is consequently only one of
judicare rather than punire. It is entirely possible that indictment of an alleged
offender will end in acquittal.
The prosecutorial authorities in the State wherein the alleged offender
happens to be present must have discretion in assessing the case at hand: much
depends on where the witnesses and the rest of the evidence are. It is important
not to prosecute hastily, lest there be acquittal and the principle non bis in idem
apply. To be sure, the alleged offender may benefit from a potential gap in the
system if the prosecutorial authorities in the State where he is present lack
enough evidence to indict, yet another State (which does have enough
evidence) fails to request extradition. Such a turn of events, characterized by
neither dedere nor judicare, would produce a fiasco.
Can a State exercise criminal jurisdiction over war criminals in absentia!
u [L]iterally hundreds of war crimes cases" were tried in France and Belgium
after both world wars in the absence of the accused. 89 Article 12 of the
Charter of the International Military Tribunal (sitting at Nuremberg)
expressly allowed the Tribunal to take proceedings against a person in his
absence. 90 Bormann, who was not in custody, was indicted accordingly, and
the Tribunal issued a special Order making it possible to go on with his trial; 91
ultimately Bormann was convicted and sentenced to death. 92 A fictitious
assertion of criminal jurisdiction over war crimes is apparently permissible.
However, since Bormann has never been caught, his sentence only exposed
the futility of in absentia proceedings. It is not clear what advantages are to be
gained from such an academic exercise if the accused is not within grasp. In
any event, the Nuremberg precedent was not followed in the case of the
Yugoslav Tribunal, which does not possess jurisdiction to try persons in
absentia. 93
Jurisdiction to Enforce. Jurisdiction to enforce in the domain of war crimes
means, primarily, punishment of persons convicted and sentenced by a
competent court. Usually, trials of war criminals are held and sentences served
within the boundaries of the same country. Yet, by agreement a State may keep
in its prison facilities offenders convicted and sentenced by an international
tribunal, 94 or even by a national court of a foreign country. 95
31
The Universality Principle and War Crimes
Jurisdiction to enforce also relates to preventive and other coercive
measures taken by a State with a view to the suppression of war crimes. Under
the universality principle, every State is empowered to take these steps against
international offenders. However, the empowerment is embedded in the
assumption that the State is acting within its territory (including vessels and
aircraft registered therein) or on the high seas. The universality principle does
not authorize a State to take coercive action within the territory of another
State without the latter's consent. Differently put, the police of one State are
not allowed to enter the territory of another (absent consent) in order to arrest
an individual, "not even to enforce law that is subject to universal
jurisdiction.
It is true that in egregious circumstances there have been occasions in which
enforcement measures were carried out within the territory of another State
without its consent. The abduction of Eichmann from Argentina for trial in
Israel is a leading example. But it must be borne in mind that the crimes he
perpetrated were staggering and that in realistic terms abduction "was the only
means of obtaining physical jurisdiction over" him. 97 Security Council
Resolution 138 (1960), which resolved the dispute over the abduction — and
which declared (quite disingenuously) that "if repeated," the acts affecting the
sovereignty of a Member State may endanger international peace and
security — did not fail to note "the concern of people in all countries that
Eichmann should be brought to appropriate justice for the crimes of which he is
accused." 9 The Eichmann precedent must be considered overall as a rare
exception rather than the rule: the rule of enforcement is and remains based on
respect for the sovereignty of foreign States.
Notes
1. See 1(1) OPPENHEIM, INTERNATIONAL LAW 456 Qennings & Watts eds., 9th ed.
1992).
2. As the Permanent Court of International Justice stated, "this might be the outcome of
the close connection which for a long time existed between the conception of supreme criminal
jurisdiction and that of the state, and also by the especial importance of criminal jurisdiction
from the point of view of the individual." S.S. Lotus (1927), 2 WORLD COURT REPORTS 36
(Hudson ed., 1935).
3. The effects doctrine dominated the opinion of the majority of the Court in the Lotus
Case, id. at 38-39.
4. See, e.g., the dissenting opinion of Judge John Bassett Moore in the Lotus Case, id. at 82.
5. See, e.g., Tokyo Convention on Offences and Certain Other Acts Committed on Board
Aircraft, Sept. 14, 1963, art. 4(b), 20 U.S.T. 2941, T.I.A.S. No. 6763, 704 U.N.T.S. 219, 2
I.L.M. 1042, 1963 U.N. JURID. Y.B. 136, 137.
32
Yoram Dinstein
6. For a full discussion, see Dinstein, The Extra-Territorial Jurisdiction of States: The
Protective Principle, 65(2) ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 305-315
(1993).
7. Schachtei, International Law in Theory and Practice. General Course in Public International
Law, 178 RECUEIL DES COURS 9, 262 (1982).
8. Brownlie, Principles of Public International Law 304 (4th ed. 1990) (for
quotation) .
9. Gilbert, Crimes Sans Frontieres: Jurisdictional Problems in English Law, 63 BRIT. Y.B. INPL
L. 415, 424 (1992).
10. See THE AMERICAN LAW INSTITUTE, 1 RESTATEMENT OF THE LAW, THE FOREIGN
Relations Law of the United States 257, §401 (3rd ed. 1987) [hereinafter
Restatement].
11. Convention on the Prevention and Punishment of the Crime of Genocide, adopted by
the U.N. General Assembly on Dec. 9, 1948, 78 U.N.T.S. 277, reprinted in THE LAWS OF
ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER
DOCUMENTS 231, 232-233 (Schindler & Toman eds., 3d ed. 1988).
12. See Schachter, supra note 7, at 262.
13. United Nations Convention on the Law of the Sea, 1982, Official Text 34 (1983), U.N.
Doc.A/CONF.62/122.
14. See DeVattel, The Law of Nations orthe Principles of Natural Law, bk. Ill,
ch. VIII, §141; vol. 3, p. 280 (Fenwick trans., Classics of International Law ed., 1993).
15. See 2 OPPENHE1M, INTERNATIONAL LAW 309-310 (2d ed. 1912).
16. See, e.g., Cowles, Universality of Jurisdiction over War Crimes, 33 CAL. L. REV. 177, 218
(1945).
17. See Dinstein, Crimes against Humanity, in THEORY OF INTERNATIONAL LAW AT THE
Threshold of the 2ist Century, Essays in Honour of K. Skubiszewski 891-908
(Makarczyk ed., 1996).
18. See, e.g., Hostages Case (U.S. v. List et al), 11 T.W.C. 1230, 1241 (U.S. Mil. Trib.,
1948).
19. See Brand, The War Crimes Trials and the Laws of War, 26 BRIT. Y.B. INPL L. 414, 414
(1949).
20. see mcdougal & feliciano, the international law of war: transnational
Coercion and World Public Order 716-717 (1994).
21. See Akehurst, Jurisdiction in International Law, 46 BRIT. Y.B. INT'L L. 145, 160 n. 4
(1972-1973).
22. See Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, 28
BRIT. Y.B. INT'L L. 382, 392 (1951).
23. Attorney-General v. Eichmann, 36 I.L.R. 277, 300-302 (Isr. S. Ct., 1962). See also
Green, The Maxim Nullum Crimen Sine Lege and the Eichmann Trial, 38 BRIT. Y.B. INTL L. 457
(1962).
24. Id. at 304.
25. Demjanjuk v. Petrovsky, 776 F.2d 571, 582-583 (6th Cir. 1985).
26. See McDOUGAL & FELICIANO, supra note 20, at 718.
27. See, e.g., Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources,
53 Brit. Y.B. InplL. 1, 12 (1982).
28. See Randall, Universal Jurisdiction under International Law, 66 TEX. L. REV. 785, 800-815
(1988).
33
The Universality Principle and War Crimes
29. Even those maintaining that universal jurisdiction is not as widespread as suggested in
this paper do not challenge its current attachment to war crimes. Some scholars sum up the
position as follows: "There are probably today only two clear-cut cases of universal jurisdiction,
namely the crime of piracy jure gentium, and war crimes." STARKE, INTERNATIONAL LAW 212
(Shearer ed., 11th ed. 1994).
30. Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, 1949, art. 49 (second para.), 75 U.N.T.S. 31, reprinted in THE LAWS
OF ARMED CONFLICTS, supra note 1 1, at 373, 391; Geneva Convention II for the Amelioration
of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1949,
art. 50 (second para.), 75 U.N.T.S. 85, reprinted in id. at 401, 418; Geneva Convention III
Relative to the Treatment of Prisoners of War, 1949, art. 129 (second para.), 75 U.N.T.S. 135
reprinted in id. at 423, 476; Geneva Convention IV Relative to the Protection of Civilian Persons
in Time of War, 1949, art. 146 (second para.), 75 U.N.T.S. 287, reprinted in id. at 495, 547.
31. Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts (Protocol I), 1977, 76 I.L.M. 1391
(1977), reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 621, 672.
32. Bowett, supra note 27, at 12.
33. Jeschek, War Crimes, 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 294, 297
(Bernhardt ed., 1982).
34- See Carnegie, Jurisdiction over Violations of the Law and Customs of War, 39 BRIT. Y.B.
INT'LL.402,423 (1963).
35. See Dinstein, The Distinctions between War Crimes and Crimes against Peace, in WAR
Crimes in International Law l, 3-4 (Dinstein & Tabory eds., 1996).
36. Report of the International Law Commission, 48th Session (1996) , 1 10-1 1 2 (U.N. Doc.
A/51/10, mimeographed) (Text).
37. See Rosenstock, The Forty-Eighth Session of the International Law Commission, 91 AM. J.
INT'LL. 365, 370 (1997).
38. See Report of the International Law Commission, 48th Session, supra note 36, at 1 1 4- 1 1 5
(Commentary) .
39. Rat 42 (Text).
40. Id. at 45 (Commentary) .
41. Mann, The Doctrine of Jurisdiction in International Law, 111 RECUEIL DES COURS 9, 95
(1964).
42. Attorney-General v. Eichmann, supra note 23, at 18, 54 (D. Ct., 1961), 304 (S. Ct.).
43. Thus, charges by U.S. authorities against American personnel relating to the
commission of war crimes in Vietnam "were actually brought not on the basis of international
law but of the law of the United States and the Uniform Code of Military Justice." Green, War
Crimes, Crimes against Humanity, and Command Responsibility, NAVAL WAR C. REV., Spring
1997, at 26, 40.
44. Shachor -Landau, Extraterritorial Penal Jurisdiction and Extradition, 29 INT'L & COMP. L.Q.
274,285 (1980).
45. The option "either to surrender or to punish" a culprit first appears in GROTIUS, DE JURE
BELLI AC PACIS, bk. II, ch. XXI, §IV; translation, vol. 2, at 528 (Kelsey trans., Classics of
International Law ed., 1984).
46. On the distinctions between extradition and other procedures (deportation and
exclusion), see SHEARER, EXTRADITION IN INTERNATIONAL LAW 76-93 (1971).
47. Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 573-574
(1995).
34
Yoram Dinstein
48. See van den Wyngaert, The Suppression of War Crimes under Additional Protocol I, in
Humanitarian Law of Armed Conflict: Challenges Ahead, Essays in Honour of
F. KALSHOVEN 197, 204-205 (Delissen & Tanja eds., 1991).
49. Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22
U.S.T. 1641, 10 I.L.M. 133 (1971), 1970 U.N. JURID. Y.B. 131.
50. For a full treatment of the subject, see Dinstein, Criminal Jurisdiction over Aircraft
Hijacking, 7 ISR. L. REV. 195-206 (1972).
51. The choice of the three preferred States is debatable. See id. at 203-204.
52. Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation, Sept. 23, 1971, 24 U.S.T. 564, 10 1.L.M. 1151 (1971), 1971 U.N. JURID. Y.B. 143,145.
53. Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents, adopted by the U.N. General Assembly, Dec.
14, 1973, T.I.A.S. No. 8532, 13 I.L.M. 41 (1977), 1973 U.N. JURID. Y.B. 75, 76.
54. International Convention against the Taking of Hostages, adopted by the U.N. General
Assembly, Dec. 17, 1979, 18 I.L.M. 1456 (1979), 1979 U.N. JURID. Y.B. 124, 125.
55. Convention on the Physical Protection of Nuclear Material, 1980, reprinted in
International Criminal Law, a Collection of International and European
INSTRUMENTS 55, 57-58 (van den Wyngaert & Stessens eds., 1996).
56. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted by the U.N. General Assembly, Dec. 10, 1984, 24 I.L.M. 535 (1985), 1984
U.N. JURID Y.B. 135, 136.
57. Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation, 1988, 27 I.L.M. 672, 675-676 (1988).
58. Id. at 679.
59. See Halberstam, Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO
Convention on Maritime Safety, 82 AM. J. INTL L. 269, 302-303 (1988) (on the priority claim of
the flag State) .
60. United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, 1988, 28 I.L.M. 497, 503-504 (1989).
61. International Convention against the Recruitment, Use, Financing and Training of
Mercenaries, 1989, 29 I.L.M. 91, 94 (1990).
62. Convention on the Safety of United Nations and Associated Personnel, 1994, 34 I.L.M.
485,488-489(1995).
63. see lambert, terrorism and hostages in international law— a
Commentary on the Hostages Convention 140-165 (1990).
64- London Agreement for the Prosecution and Punishment of the Major War Criminals of
the European Axis, 1945, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1 , at 9 1 1 ,
912.
65. Rat 913, 914.
66. Judgment, 1 T.M.W.C. 171, 218 (IntlMil. Trib., 1946).
67. S.C. Res. 827 (1993), 32 I.L.M. 1203, 1204 (1993).
68. Secretary-General's Report on Aspects of Establishing an International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia (1993), id. at 1159, 1171-1172.
69. See, e.g., Arangio-Ruiz, The Establishment of the International Criminal Tribunal for the
Former Territory of Yugoslavia and the Doctrine of Implied Povuers of the United Nations, in DAI
TRIBUNALI PENALI INTERNAZIONALI AD HOC A UNA CORTE PERMANENTE 31-45 (1996).
35
The Universality Principle and War Crimes
70. International Tribunal for the Prosecution of Persons Responsible for Serious Violations
of International Humanitarian Law Committed in the Territory of Former Yugoslavia since
1991, Appeals Chamber, The Prosecutor v. Tadic, Jurisdiction (Oct. 2, 1995) 8
(IT-94-1-AR72), 35 I.L.M. 32, 41-45 (1996).
71. See Fox, The Objection to Transfer of Criminal Jurisdiction to the UN Tribunal, 46 INT'L &
COMP. L.Q. 434, 437 (1997) (for quotation).
72. Secretary-General's Report, supra note 68, at 1177.
73. The Prosecutor v. Tadic, supra note 70, at 52.
74- Shraga & Zacklin, The International Criminal Tribunal for the Former Yugoslavia, 5 EURO.
J. IntlL. 360, 371-372 (1994).
75. See Article 14(7) of the 1966 International Covenant on Civil and Political Rights,
adopted by the U.N. General Assembly, Dec. 16, 1966, 999 U.N.T.S. 171,6 I.L.M. 368 (1967),
1966 U.N. JURID. Y.B. 1 78, 183. As observed by the Trial Chamber of the Yugoslav Tribunal in
the Tadic case, "this provision is generally applied so as to cover only a double prosecution within
the same State." International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia
since 1991, Trial Chamber, The Prosecutor v. Tadic, Decision on the Defence Motion on the
Principle of non bis in idem (Nov. 14, 1995) 8 (IT-94-1-T, mimeographed).
76. Geneva Convention III, supra note 30, at 460.
77. See Paust, It's No Defense: Nullum Crimen, International Crime and the Gingerbread Man,
60 ALB. L. REV. 657, 662 (1997).
78. See Boss, The Extraterritorial Jurisdiction of States, Revised Draft Resolution, Article 8(6) ,
65(1) ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 148, 151 (1993).
79. Secretary-General's Report, supra note 68, at 1177.
80. Report of the International Law Commission, 48th Session, supra note 36, at 69.
81. The provisions of Articles 9 (concurrent jurisdiction) and 10 (non bis in idem) of the
Yugoslav Tribunal's Statute are replicated in Articles 8 and 9 of the Statute of the International
Tribunal for Rwanda, established by the Security Council in Resolution 955 (1994), 33 I.L.M.
1600, 1605-1606 (1994). The latter Statute does not deal, however, with war crimes.
82. Report of the International Law Commission, 46th Session, (1994) 11(2) Y.B.I.L.C. 1, 57.
83. Report of the International Law Commission, 48th Session, supra note 36, at 66.
84. For the three categories of jurisdiction, see 1 RESTATEMENT, supra note 10, at 232
(§401).
85. Green, The German Federal Republic and the Exercise of Criminal Jurisdiction, 43 U.
Toronto L.J. 207, 212 (1993).
86. Geneva Convention I, art. 49 (first para.) ; Geneva Convention II, art. 50 (first para.) ;
Geneva Convention III, art. 1 29 (first para.) ; Geneva Convention IV, art. 146 (first para.) , supra
note 30, at 391, 418, 475-476 & 546-547.
87. 1 Restatement, supra note 10, at 304.
88. Essential rules pertaining to judicial proceedings against persons charged with war crimes
are incorporated in Article 99 of Geneva Convention III, supra note 30, at 463-464. For the
application of these rules to prisoners of war accused of war crimes, see COMMENTARY, III
Geneva Convention 415-416 (de Preux ed., 1960).
89. See LEVIE, TERRORISM IN WAR— THE LAW OF WAR CRIMES 35, 433 (1993).
90. London Agreement, supra note 64, at 915.
91. Order of the Tribunal regarding Notice to Defendant Bormann, 1 T.M.W.C. 102, 102
(Int'l Mil. Trib., 1945).
92. International Military Tribunal, Judgment, supra note 66, at 340-341, 367.
36
Yoram Dinstein
93. See Guillaume, The Future of International Judicial Institutions, 44 INT'L & COMP. L.Q.
848,857 (1995).
94. See Article 27 of the Statute of the Yugoslav Tribunal, Secretary-General's Report, supra
note 68, at 1188.
95. If a trial for war crimes is conducted by a Detaining Power holding a prisoner of war, his
transfer to another Power will additionally be governed by Article 12 of Geneva Convention III,
supra note 30, at 434-435.
96. Henkin, International Law. Politics, Values and Functions. General Course on Public
International law, 216 RECUEIL DES COURS 9, 313 (1989).
97. Silving, In re Eichmann: A Dilemma of La<w and Morality, 55 AM. J. INPL L. 307, 338
(1961).
98. S.C. Res. 138 (1960), 4 UNITED NATIONS RESOLUTIONS, SERIES II: RESOLUTIONS AND
Decisions of the Security Council 14, 14 (Djonovich ed., 1989).
37
38
Implementation of International
Humanitarian Law in Future Wars
Louise Doswald'Beck
A
NY ATTEMPT TO LOOK INTO THE FUTURE is fraught with
difficulty and the likelihood that much of it will be wrong. If someone
in 1898 had tried to foresee issues relating to the implementation of the laws
and customs of war in the twentieth century, it is highly unlikely that he could
have foreseen many of the major developments that have characterized
warfare in this century and, therefore, the difficulties of implementation that
these created. At best, he could have based his attempt on trends, in particular
the development of mechanization at that time. Putting aside the possibility of
dramatic events like a catastrophic nuclear war, or unforeseeable fundamental
changes in the nature of warfare or the organization of international society,
the most one can hope to do is to extrapolate from present trends and see how
these could affect the implementation of the law in the future. In so doing, one
may assume that human nature will not change, although the organization of
society and of international relations could well do so.
Implementation of international humanitarian law can take place on three
levels, namely, by the individual undertaking an act during an armed conflict,
by the society for which he is acting, and finally by the efforts of the
international community. Generally speaking, laws that reflect the values of a
Humanitarian Law in Future Wars
society, or at least the interests of those in a position to enforce the law, have a
good chance of being implemented.
This article will attempt to analyze the factors that help or hinder the
implementation of the law. It will first examine those factors that helped such
law develop in customary practices, and analyze whether they continue to be
present this century and what the prospects might be for the future based on
present trends. The changes in international society that appear to be taking
place and the effect these may have on implementation will then be
considered. Finally, the article will consider certain mechanisms for
implementation. With respect to implementation, this author does not assume
that we should speak of implementation of the law in the next century as the
law stands now, but assumes that changes and developments will take place in
order to reflect developments in technology, methods of warfare, and society.
This article will therefore consider implementation of the major principles of
international humanitarian law that reflect its basic purpose as we understand
it today, namely, the limitation of means and methods oi warfare and the
regulation of the treatment of persons in the power of adverse authorities in
order to limit the destructiveness and suffering of war.
Factors That Helped Ensure the Implementation of the
"Laws and Customs of War"
First, if rules reflect existing general practice, it is likely that their
implementation will not be particularly difficult, as efforts will probably be
limited to keeping in line the occasional individual who behaves differently
from others in his society. 1 It is noteworthy that prior to the attempts to codify
the law in the late nineteenth century, the laws and customs of war were an
articulation of the methods of warfare common to professional armies of that
time. Nonprofessional groups were not expected to conform to this law and
were, therefore, also not entitled to the privileges that were enjoyed by
professional armies, especially prisoner-of-war status. The protection oi the
civilian population was assured largely by methods of combat rather than any
strict rule to that effect. The lack of such a strict rule is illustrated by the fact
that civilians did suffer greatly during sieges; they could even be forced back
into the besieged city if they tried to escape. 2 On the other hand, the practice
in the Middle Ages whereby a city's population could be punished for
resisting capture was considered dishonorable and uncivilized by the eighth
century. 3
40
Louise Doswald-Beck
This brings us to the second factor of importance, namely, the belief by
combatants of the appropriateness of having certain rules in battle. Not only
did concepts of honor prevent the sacking of cities after capture, but they also
imposed a number of rules relating to the treatment of other combatants. Most
important were the prohibitions on the use of poison, treachery, and attacking
an enemy combatant once hors de combat. 4 These values and the sense of
responsibility that they entailed were clearly instilled not only by the societies
in which professional soldiers were brought up but also by the ethic of the
armies themselves. The criminality o( violations of the law flowed fairly
naturally from this sense of appropriate and inappropriate behavior.
The extent to which reciprocity was important in the context of this ethic is
uncertain, for one must be careful not simply to project onto society of that age
the concept as perceived today. There is no conclusive evidence that
"civilized" societies, as they saw themselves, strictly required reciprocity for
every action vis-a-vis each other. 5 However, as far as behavior in relation to
"uncivilized" societies was concerned, it was conditioned by their incapacity, as
it seemed at the time, to apply or appreciate such niceties. Evidence of this is to
be found in the Lieber Code 6 and in the arguments of the British when they
wanted to introduce the use of dum-dum (hollow-point) bullets. 7 However,
another type of reciprocity did become important with the introduction of new
rules in treaties, namely, the international law rule that parties need to be
bound by the treaties in question. This was particularly evident in the general
participation clause of the Hague Conventions. 8
A third factor which fosters implementation is ease in applying the law. As
the law followed practice in the last century, not being able to apply the law was
simply not a problem for professional armies. Any potential difficulty was met
by allowing exceptions where considered expedient. The most obvious
example of this was the rule that captured soldiers were not to be attacked;
exceptions were made if keeping them as prisoners of war was impossible for the
commander concerned. 9
Fourthly, a lack of hatred for the enemy or of desire for personal vengeance
clearly helps prevent atrocities of all kinds. The fact that recourse to war was
not illegal, or even unusual, in the past helped armies view each other as fellow
professionals doing their job. The notorious cruelty of non-international armed
conflicts is at least partly caused by the emotions involved, the other important
aspect being the frequent involvement o{ nonprofessional combatants.
Finally, mental healthiness among combatants helps prevent atrocities.
Although many may argue that only a deranged person would want to go into
battle, there can be no doubt that the short battles of the past and the sense of
41
Humanitarian Law in Future Wars
group cohesion in professional armies helped foster respect for the rules. On
the other hand, prolonged and excessive stress has a very adverse effect on a
soldier's capacity to abide by rules that require abstention from attack when he
feels threatened.
Factors That Help Or Hinder the Implementation of the Law:
Twentieth Century Difficulties and Future Prospects
Law and Methods of Warfare. The single most important factor in creating
problems regarding the implementation of the law in the twentieth century was
clearly the dramatic changes in the technology of warfare. This may well
continue to be a problem in the twenty-first century. Whereas war-making
methods in the nineteenth century were not dramatically different from those
of previous centuries, thus allowing the gradual development of customs which
reflected such practice, the sudden and major changes of the twentieth century
plunged the world into disarray and resulted in the need for extensive changes
in the law by treaty.
From Law Reflecting Practice to Law Preventing Practice. The major
motivation of the call by the czar of Russia for the conferences at the end of the
nineteenth century and the beginning of the twentieth was the development of
weaponry that he perceived was taking place. This was farsighted, for the
extreme destructiveness o{ new technology was such that responsible
politicians simply could not continue to let law reflect practice, which would
have allowed whatever technology was capable of. However, this has meant
that the law has increasingly been dictated by the need to curtail practice
rather than reflect it, thereby creating tensions in relation to the
implementation of the law in the twentieth century. Changes in the law largely
prohibited certain new practices, such as the use of chemical weapons and
massive bombardments of cities, although those who indulged in such practices
were of the opinion that they had military utility. Other practices continued to
be allowed despite some attempts to outlaw them; they have been responsible
for a great deal of destruction and suffering. Examples include the use of
submarines, bombardment by aircraft, mines, and long-range missiles. These
inconsistencies have meant that the ethics of the law of war have become quite
unclear to both normal soldiers and laymen.
The law no longer takes the simple approach that all militarily useless
cruelty is prohibited, with the rest in principle allowed; the sheer destructive
nature of today's technical possibilities means that compromises have had to be
made for the sake of the survival of humanity. However, these compromises do
42
Louise Doswald-Beck
not always appear very consistent to the average person. The fact that certain
bullets are prohibited but nuclear weapons have not been clearly and
unambiguously prohibited creates scepticism regarding the seriousness of any
of the law of war. The principle of proportionality in attack is an excellent
example of compromise between military and humanitarian needs, but the
implementation o{ this rule is somewhat subjective and unclear, and causes a
certain degree of doubtfulness among those who hear it for the first time. The
problem has been exacerbated by collateral damage that tends to occur after
the event, such as water shortages or other highly negative effects of attacks on
the power stations on which modern civilian society depends for survival. 10
The difficulty that civilians have in practice in obtaining protection from the
effects of hostilities has had the effect of creating questions as to the continued
need for law to protect combatants from excessively cruel weapons. 11
Potential New Weapons and the Need that Practice Again Reflect Law. The
perceived incongruity between practice and law that has developed this
century has created a serious image problem for international humanitarian
law. Law has to reflect practice at least to some degree in order to be taken
seriously. For the reasons indicated above, it was not possible simply to have
the law allow the use of any new technological possibility. Therefore, what is
needed is a means to make practice reflect the law, or at least the basic
principles of the law; in so doing practice can again reflect certain values rather
than having primarily to stop practice. This is particularly important as there is
evidence that we are, at the end of the twentieth century, on the brink of a
major change in war-making capability that could be at least as important as
the major changes that took place earlier in the twentieth century relative to
the nineteenth. The extent of research that is taking place to develop
directed-energy weapons means that we could see a major change in methods
of warfare. At present, it is difficult to imagine the full impact of this change. 12
The ability of high-power microwaves and electromagnetic-pulse weapons to
incapacitate electronics has enormous potential for the destruction of the
life-support systems of technologically developed societies, which use such
electronics for all kinds of purposes. The potential effect of acoustic beams and
electromagnetic waves on persons is as yet not fully certain, nor is the extent to
which they could be weaponized for antipersonnel purposes. Antimateriel laser
beams are still being worked on, and one should not rule out the possibility of
the development of antipersonnel lasers that target persons in different ways
from the blinding laser weapons that have been recently banned. 13 Although
the virtually instantaneous effect of these weapons, as well as their invisibility
and silence, is bound to change methods of warfare in a major way, it would
43
Humanitarian Law in Future Wars
require a military analyst with some imagination and foresight to indicate
precisely how.
Other high-tech developments could be space-based weapons and various
types of nuclear weapons. The so-called "star wars" antimissile systems ran into
technical, as well as legal, difficulties, but it is not beyond possibility that these
could be developed during the next century to hit targets within the
atmosphere; currently, it is prohibited only to deploy nuclear weapons in space.
With regard to possible further developments in nuclear weapons, the
Comprehensive Test Ban Treaty should in theory prevent further
development, but there are indications that this is not the case in practice.
Abstension in use is largely due to their radiation effects; therefore, any
developments that could substantially reduce or even eliminate these effects
could tempt some to make use of their enormous blast capabilities. 14
Mention must be made of a potential new method of warfare that is already
prohibited in law but that could have horrific effects if developed, namely,
genetic weapons. The specter of this as well as of new and obviously
preliminary developments in bio-technology has already motivated States to
begin negotiations for the development of verification methods for the
Biological Weapons Convention. 15
Compared with these potential developments, present work on so-called
"non-lethal" weapons seems minor in comparison. However, care must
nevertheless be taken to evaluate their potential impact, because any that
could cause permanent disability would certainly not be more desirable from a
humanitarian point of view than normal conventional weapons, and it is not
even clear that all are necessarily non-lethal. Potential effects on the
environment should also be considered. 16
This author does not suggest that there should be a stop to weapons
development. Not only would such a proposal be totally unrealistic, but some
new characteristics, such as increased accuracy or ways to render targets hors de
combat while minimizing damaging effects, could be positive developments.
However, it does mean that if we are to preserve certain values for the sake of
the survival of some notions of humanity, then those in a position to direct
weapons research and development requirements need to take their
responsibilities seriously. Therefore, it is important that in designing new
weapons the values of the laws of war be taken into account at the outset to
ensure not only that weapons are capable of distinguishing between civilians
and combatants but also that antipersonnel weapons cause neither inevitable
death nor permanent incapacity. Another factor of importance is the
increasingly fragile environmental state of our planet. This is not something
44
Louise Doswald-Beck
that weapons developers had to think much about in the past, but for the sake
of the survival of all of us it is earnestly hoped that this factor will be taken
seriously in any new design of weapons. Given that much new weapons
research these days is undertaken by companies which seek primarily to sell
their products, it is important that States undertake to inform them beforehand
of effects which are contrary to the rules or principles of international
humanitarian law.
Belief in the Appropriateness of the Rules, Belief in the appropriateness of
humanitarian rules is the single most important factor for effective
implementation of the law. As already indicated, it has been dealt a severe blow
in the twentieth century by the inappropriateness of law primarily preventing
practice rather than reflecting it. It is clear that law will need to be developed in
order to address new methods of warfare. Some of such developments in the
past have usefully helped reflect professional military utility; for example, the
creation towards the beginning of this century of the notion of the military
objective, arising from a new ability to bombard targets from a distance, helped
reflect the military concept of economy of force.
The crisis of the twentieth century. The extensive effects of modern warfare
and the practice of conscription in the twentieth century has meant that war
making is no longer within the province of a few professionals. The fact that
war is no longer a lawful means of settling disputes may have also contributed
to a reduction in the professional respect between soldiers on opposing sides.
More seriously, basic notions of "honor" effectively died this century,
frequently leaving in their stead a certain cynicism toward, disbelief of, or plain
ignorance about the fact that warfare is meant to have rules. The international
community has tried to counter the increased destruction and cruelty of
warfare in the twentieth century by more extensive and detailed treaty law.
However, the fact that this law is for the most part not known, or where it is
known, not sincerely believed in, has led to serious difficulty in getting most of
it applied.
Some aspects of the law require interpretation by States, for example, the
basic principles prohibiting weapons that are by nature indiscriminate or cause
superfluous injury or unnecessary suffering. A lack of genuine belief in the
importance of these rules renders ignoring them easy, and, generally speaking,
States have not been willing to declare specific weapons illegal on the basis of
these rules. 17 Instead, treaty prohibitions or a demise of use in practice have
tended to result from the enormous pressure of public opinion. 18 Other rules
are straightforward and detailed, in particular those in the 1949 Geneva
45
Humanitarian Law in Future Wars
Conventions, which require certain respectful treatment of persons in the
power of an adverse party. It would be possible to apply most of these rules
without much difficulty if combatants and States genuinely believed in the
importance of them. However, a number of factors have prevented this,
including ignorance, hatred of the enemy, indifference, and competing
interests. It is clear that if soldiers are to abide by the rules, they must be
convinced that their commanders take such rules seriously and that to ignore
prescribed behavior will result in military discipline. 19 There is evidence that
this is beginning to improve, with more armies beginning to teach the laws of
war seriously. However, the situation is very far from perfect, and the personal
impression of this author, on the basis of speaking with military personnel from
around the world, is that their instruction in the law has been patchy or
nonexistent. 20 Respect for the law in future wars will depend to a great degree
on whether instruction on the pertinent rules is improved during military
training and whether the necessary sanctions are imposed, preferably by the
soldier's own country, in case of violations.
The Need to Repress Violations of the Law. The fact that international
humanitarian law has not been considered to be of major importance by States
is reflected in their failure to require the prosecution of war criminals; more
than fifty years after the Geneva Conventions entered into force most
countries have still not carried out their obligation to provide for compulsory
universal jurisdiction over grave breaches. However, there can be no doubt
that the prosecution of such criminals would go a long way toward convincing
combatants of the serious nature of the law, rather than perpetuating its
present image of theoretical lip-service, or at most of double standards by
which some are prosecuted and others not. 21
There is at present quite a good chance that an international criminal court
will come into being in the next century, but whether this helps the image of
international humanitarian law or hinders it will depend almost entirely on the
jurisdiction of the Court. The present draft contains two provisions that could
seriously harm how it is perceived: that the United Nations Security Council
can prevent the Court from hearing such a case if it is itself dealing with the
conflict in question; 22 and that the consent is required of the custodial State,
the State where the act occurred, and the States of which the victim and the
accused are nationals — consent that is in addition to their ratification of the
treaty! 23 These draft provisions undermine both the notion of universal
jurisdiction for war crimes and the rule of law, and they are likely to encourage
further an image of double standards. In particular, the provision that requires
the consent of the State of which the accused is a national would notionally
46
Louise Doswald-Beck
provide a form of State immunity to war criminals. As the whole purpose of an
international criminal court is to assure the prosecution of war criminals if they
are not tried by their own courts or extradited for trial, it is essential that the
court have inherent jurisdiction for such crimes. Otherwise, in the next
century implementation of the duty to repress war crimes will prove no better
than before.
The Influence of Society in General Both an effective international criminal
court and respect for the rules by combatants during conflicts depend on a
genuine and clear understanding of the importance of limits in warfare and of
respect for persons under control of an adversary. Detailed rules will inevitably
vary over time to accommodate changes in society and in methods of warfare,
but it is important to preserve the basic values. If these were viewed as
important by society in general, soldiers would perceive them as normal when
taught them during military training. The most insidious problem is that many
persons are of the opinion that war should know no rules and that the only way
to deal with adversaries is to be stronger, more prepared than they are, and
willing to use any means to accomplish one's aims. This is based on a belief that
such means are necessary for personal and national survival. Unfortunately,
this is what the new generation seems to be primarily taught, through the
media and war-play computer games. The same means could instill
humanitarian law values, but unfortunately it is obvious that humanitarian law
is either unknown or not believed in — or considered completely irrelevant — by
those who produce these games and programs. This is a vicious circle that must
be rectified somehow. Otherwise, we could face a situation in the next century
where, with weapon developments which could be even more dangerous than
those of this century, the rulers and combatants will be uninterested in
upholding the values of international humanitarian law.
The Influence of International Human Rights Law and Human Rights
Organizations. In the second half of the twentieth century the driving factor in
keeping notions of limits on behavior in wartime alive has been the
development of human rights law. Despite the totally unrelated origin of this
law — it was primarily motivated by a desire to render governments accountable
for behavior towards their own citizens — the humanitarian, protective purpose
of human rights law has had its influence on the views of certain parts of the
international community. 24 The horrors of the Second World War not only led
individuals to pressure States to include the promotion of human rights as a
basic purpose of the United Nations 25 but also led to the creation of "crimes
against humanity" as an international offense and to conclusion of the 1948
Genocide Convention. Nor is it a coincidence that non-international armed
47
Humanitarian Law in Future Wars
conflicts were regulated by treaty for the first time in 1949. 26 A major step was
taken at the 1968 United Nations Human Rights Conference in Teheran,
where a resolution entitled "Human Rights in Armed Conflict" encouraged
States to afford more respect to existing humanitarian conventions and to add
further rules to protect "civilians, prisoners and combatants in all armed
conflicts." 27 The influence of human rights law can be clearly seen in the
wording of the fair trial guarantees in the 1977 Protocol II Additional to the
Geneva Conventions. 28 (Ironically, humanitarian law could have usefully
influenced human rights law at that time, for the judicial guarantees found in
the Geneva Conventions were not listed as nonderogable rights in the
European Convention of Human Rights nor in the United Nations Covenants.
Practice since then has shown that this was a mistake.) 29
In some respects, the influence of human rights law was inevitable, for much
in the Geneva Conventions that is devoted to protecting individuals overlaps
with a number of civil rights as well as with economic and social ones.
However, a major difference is that humanitarian law concerns itself with
behavior by all parties to a conflict, a concept particularly important in
non-international armed conflicts and for which human rights law is not
entirely suited. We will return to the particular problem of such conflicts.
Since the 1970s the United Nations has concerned itself with issues that
include important aspects of international humanitarian law in human rights
contexts, in particular in the Human Rights Commission and its
Subcommission for the Elimination of Discrimination and the Protection of
Minorities. 30 Human rights rapporteurs have also been asked to analyze
subjects that primarily concern armed conflict. Some rapporteurs are theme
based, such as the special ones for mercenaries 31 and for sexual violence during
armed conflict, 32 while others are country based, such as those for
Afghanistan, 33 the former Yugoslavia, 34 Iraqi-occupied Kuwait, 5 and
Rwanda. 36
The most dramatic recent example of this trend is the present negotiation of
a Protocol Additional to the Convention on the Rights of the Child, which will
be solely devoted to the recruitment and participation oi children in
hostilities. 37 There can be no doubt that most of the impetus for these
developments comes from nongovernmental human rights organizations,
which represent important segments of civil society. 38 Resistance or protest
from civil society has also had a major effect on limits on weaponry. The nonuse
of nuclear weapons since the Second World War is largely due to such civil
protest, as was the desire following the Vietnam war to prohibit the use of
incendiary weapons. 39 The call for the ban on blinding laser weapons, although
48
Louise Doswald-Beck
originated by the governments of Sweden and Switzerland 40 and primarily
pursued by the International Committee of the Red Cross, was boosted by the
support it received from various human rights organizations. 41 The most
stunning recent development in this regard is the ban on antipersonnel mines,
agreed to in principle by all States 42 and actively supported by over one hundred
of them. 43 In just five years the initial call in 1992 by six nongovernmental
organizations led to a coalition of about a thousand such entities, collectively
referred to as the International Campaign to Ban Landmines. 44 In 1997 it
received the Nobel Peace Prize for its work. The efforts were not entirely civilian,
for the original founder of this coalition was the Vietnam Veterans of America
Foundation, 45 and there can be no doubt that the decision by the International
Committee of the Red Cross in February 1993 to support such a ban helped the
process enormously. 46 Certain military personnel were also supportive of the
process, by indicating that the harmful effects of antipersonnel mines outweigh
any military utility they may have — a classic humanitarian law approach. 47
However, despite some military support, there can be no doubt that the trend at
present is for civil society to push most actively for restraints in methods and
means of warfare and in the protection of its victims.
What does this bode for the future? On the one hand, if this trend
continues, it means that humanitarian law principles are still being fought for
by some members of society. This should have the effect of saving at least some
of the law. If this concern filters down to the average person to the extent that
potential combatants consider restraint in armed conflict natural, a positive
development will have taken place. If, on the other hand, we continue to have
a clash of interests, with civil society continuing to make Herculean efforts to
regulate one aspect of the law at a time, its efforts could be overtaken by
contrary military or technological developments, and the tension between
legal principle and practice will continue into the next century.
Ease in Application of the Law, This issue is highly pertinent for the
implementation of the law relating to methods of warfare. As already indicated,
in the days when law followed practice and warfare largely consisted of
hand-to-hand fighting and sieges, there was no particular difficulty in applying
the law. However, with the introduction of aerial bombardment and missile
warfare, the rules limiting attacks to military objectives and requiring
proportionality are not always easy to respect. First, accurate intelligence is
necessary in order to ascertain correctly which objects and persons are military
objectives and what their exact location is. Secondly, correct identification of
protected persons, vehicles, and buildings will continue to be problematic until
49
Humanitarian Law in Future Wars
more sincere efforts are made to take advantage of the technological
possibilities for identification. Thirdly, perfectly accurate weapons systems are
still in the minority. Finally, any assessment of proportionality in attack has so
substantial a subjective element that it is very difficult to gauge whether the law
has been respected.
Faced with these difficulties, both commanders and soldiers are likely to
make mistakes, and it is not surprising that the number of civilian casualties has
dramatically risen since the beginning of this century. 48 A study by two
International Committee oi the Red Cross (ICRC) doctors has shown
statistically what has always seemed common sense before, namely, the more
use that is made oi bombs and missiles as opposed to bullets, the greater the
number of civilian casualties compared with military ones. 49 It is the extreme
difficulty of in practice respecting Protocol II to the Convention on Certain
Conventional Weapons applicable to landmines, particularly the rules relating
to limitation to military objectives and to marking and recording, that has led
the international community to ban antipersonnel mines altogether as
indiscriminate weapons. 50
The phenomenon of fighting from a distance is said to adversely affect also a
combatant's care as to the nature of the target, for he will not see the damage
that is actually being done. 51 Present trends, with increasing computerization,
are likely to exacerbate this problem. Unless major efforts are made to improve
the accuracy of identification and the accuracy of weapons generally available,
implementation of the law may well become more difficult.
Another aspect of concern is the complexity of the legal regime itself; the
more complex the rules, the more likely it is that they will not be followed
accurately. This has been seen in the context of the law of naval warfare, where
not only has there been no general treaty regulation since 1907, but the rather
complex traditional customary rules were also extensively violated during the
Second World War. 52 Even the Nuremberg Tribunal, in the cases of Admirals
Doenitz and Raeder, confused the two separate notions of rescue after sinking
of a vessel and removal of personnel before sinking in situations where capture
is not possible. 53 It is for this reason that during the drafting in 1994 of the San
Re mo Manual on International Law Applicable to Armed Conflicts at Sea 54
this author argued for a simple rule prohibiting the attack and capture of
passenger vessels carrying only civilians — rather than allowing capture and
even destruction subject to certain rules, as now provided. 55
The desire for simplicity can also be seen in the disappointment of many
States with the complex rules for the use o{ antipersonnel mines in Protocol II
Additional, as amended on 3 May 1996, to the Convention on Certain
50
Louise Doswald-Beck
Conventional Weapons. Convinced that this would not really work in
practice, they went on to adopt the straightforward ban on antipersonnel mines
in Oslo in September 1997. The ban was embodied in the Ottawa Treaty in
December.
Attitude toward the Enemy, The prohibition of aggression, the rise in
ideological wars, and the increasing intensity of non-international armed
conflicts have all had the effect of introducing additional personal hatred for
the enemy in the twentieth century. 56 For these reasons, the murder of civilians
is particularly acute in non-international armed conflicts, an issue that will be
revisited later. Unfortunately, in that there appears to be no downturn in this
trend, the problem could well become much worse in the next century, making
implementation more difficult, if not impossible in some situations. The
present rise in fundamentalism and fanaticism is extremely perturbing in this
regard. It is clear that in order to avoid the worst, the international community
will need to make a particular effort to try to solve certain situations of tension
caused by ethnic rivalries or other ideologies. It will also need to be more
assiduous in punishing violations of the laws of war, including those in
non-international armed conflicts. More serious efforts should also be made to
limit the extent o{ proliferation of weapons, including small arms, to try to
minimize the effects of such wars.
Mental Health of Combatants. The longer the period of tension, the more likely
it is that combatants will suffer from combat stress disorder and have greater
difficulty in maintaining the discipline necessary to respect the rules in
threatening situations. 57 Suggestions on improving this situation 58 include
ensuring that weapon effect does not induce a sense of total helplessness in the
soldier, 59 and giving soldiers leave on a regular basis. 60 The difficulty in accurately
identifying hostile objects from a distance is exacerbated by stressful situations, a
fact very clearly seen in the case of the USS Vincennes and its attack on the Iran
Air airbus in July 1988. Both the International Civil Aviation Organization
report and that undertaken by the United States attribute the mistake to the
feeling of tension on board the Vincennes at the time and the conviction by the
crew that they could well be attacked that day. This led a technician to so
misread the information on the computer screen that he believed the opposite of
what he saw. 61 This mistake occurred in circumstances that did not amount to a
full-scale conflict, so one can only assume that in intensive armed conflict such
mistakes will be more frequent. Close range and rapid approach of a hostile
object makes the tension particularly acute.
51
Humanitarian Law in Future Wars
Unfortunately, the situation is likely to get worse in the future if major
developments in directed-energy weapons go ahead. This is primarily because
the effects of such weapons are virtually instantaneous and may well occur over
large distances, thus increasing the feeling of inability to defend oneself.
Inappropriate preemptive attacks may well result, leading to further attacks on
protected or civilian persons or objects.
Changes in the Structure of International Society
Inter-state Armed Conflicts Are in the Minority. This situation is not in itself
unfortunate, for it shows that the rules prohibiting the use of force by one State
against another have had some effect. This author is also not convinced that
internal armed conflicts have actually become more numerous as such; rather,
we are more aware of what is going on in all parts of the world, and the level of
weaponry now available in such conflicts means that they have a more serious
effect on the population. The extent o( political and commercial intercourse
between States also means that the effects of such conflicts are far more serious
in international relations than they used to be. However, the facts remain that
inter-State conflicts are in the tiny minority and that unless this situation is
seriously addressed, most of international humanitarian law is at risk of being
perceived as largely irrelevant to modern realities.
It is an obvious truism that international law is primarily aimed at regulating
relations between States, human rights law notwithstanding. Despite Article 3
common to the Geneva Conventions and Additional Protocol II, the detailed
rules of international humanitarian law have been largely developed for
international armed conflicts. The easiest legal application is in the case of a
classic conflict between States. It is also a truism to state that far more
numerous than international armed conflicts are non-international armed
conflicts and actions by various international peacekeeping or peace-
enforcement groups.
Present trends seem to show that this situation is likely to continue into the
next century. We are witnessing not only the breakup of a number of nations
and increased stress on local government within nations, but also an increasing
trend towards supranational law in the form of economic and political
international organizations with extensive lawmaking powers and increasing
influence in international affairs. At the same time, force is being used quite
extensively by private groups of a financial or criminal nature, with effects that
cannot be ignored. The challenge of the next century will be how to deal
effectively with these developments. It will require a willingness to venture into
52
Louise Doswald-Beck
legal regulation that does not rely on classical methods of qualifying a conflict,
which at present can determine only whether a conflict is international or
non-international.
Non-International Armed Conflicts, In practice, soldiers are not trained in two
different ways, and this is reflected by the fact that most existing military
manuals do not include one set of rules for international armed conflicts and
another for non-international ones. The problem is mostly one of principle. It is
unfortunate that a number of States are still unwilling to admit the formal
applicability of more detailed rules for non-international armed conflict; their
view is that this would amount to some kind o( interference in their internal
affairs or could be seen as granting international recognition to opposing forces.
The negotiation of Additional Protocol II illustrated the widely differing views
of States on this important issue. 62
The Principle of Application of International Humanitarian Law. There being
no indication that non-international armed conflicts are dropping in number,
we are likely to see a continuation of this problem in the next century. In
principle, professionally trained soldiers should be able to use the same
methods for international and non-international armed conflicts.
Application by Governmental Armed Forces. As far as behavior by government
armed forces and other governmental institutions is concerned, they are in law
bound by the wording of Common Article 3, Protocol II, where applicable, and
relevant human rights law. As indicated above, willingness to regulate internal
armed conflicts by treaty arose when international human rights law came into
being. However, States that are not keen on human rights law tend also to
resist further regulation o{ internal armed conflicts in international
humanitarian law. The difficulties during the negotiation of Protocol II were
such that the compromise which resulted in the definitive text came at the last
minute, allowing very little discussion on the final wording. This has resulted in
an incongruous situation, in that some of the rules in Protocol II 63 are more
absolute in their protections than those to be found in Protocol I; it is obvious
that reference to the equivalent articles in Protocol I will be necessary for their
interpretation in practice. It is also hoped that the study presently being
undertaken by the ICRC on rules of international customary law will further
elucidate the rules generally accepted as being applicable in non-international
armed conflicts. 64 It is quite likely that the study will indicate points of
weakness where the international community could be encouraged to continue
work towards greater specificity.
53
Humanitarian Law in Future Wars
There is one area, however, where application of the rules by governmental
armed forces is difficult — the distinction between the civilian population and
others. Common Article 3 does not define what is meant by the "armed forces"
of the other party, nor is there any definition o( who are considered to be
combatants. Civilians are referred to simply as persons who do not take an
"active" part in the hostilities. Does this mean that all other persons are
combatants that can be attacked? What does "active" mean? Is it the same as
the term "direct" found in Article 13 of Protocol II? Article 1 of Protocol II is
better in this regard, as it describes the type of dissident armed forces that need
to exist for Protocol II to come into effect. One could assume that only persons
belonging to such groups are combatants and that all other persons are
civilians. However, Article 13, paragraph 3, speaks of the protection of
civilians unless they take "a direct part in hostilities." This could be interpreted
as meaning that all persons that do not take such a direct part are civilians.
However, this interpretation could conflict with the concept of "armed forces"
referred to in Article 1, and it may well be that the reference to "direct"
participation is only the equivalent of Article 51, paragraph 3, of Protocol I.
These issues are not academic but rather very practical ones that regularly
arise when attempting to assess whether certain attacks are lawful or not. It is
very common in internal armed conflicts to have persons who mostly lead
normal lives yet indulge in guerrilla activities from time to time. Can they be
attacked at any time and in any place? We also find the phenomenon of
civilians armed and trained to fight, ostensibly for their own protection, but
also for the purposes of those who trained them. What is their status? What is
the status of children who are asked to deliver messages to guerrilla groups,
especially messages that are important for intelligence purposes? A major effort
should be made to find answers to these basic questions so that the lawfulness
of acts in non-international armed conflicts can be more readily assessed in the
future.
Application by N on- governmental Forces. As to the behavior of
non-governmental groups, there are both theoretical and practical problems.
The application of international law to non-governmental groups is still
perceived by many governments as problematic despite the existence of
Common Article 3 and the ratification of the Geneva Conventions by virtually
all States. Recent attempts by the government of Colombia to indicate clearly
that the new treaty banning antipersonnel mines applies to non-State entities
ran into difficulties when certain Western governments could not accept the
proposition that such entities might have responsibilities under international
law. 65 In the end, Colombia had to content itself with the preambular
54
Louise Doswald-Beck
paragraph indicating that the rules of humanitarian law apply to all parties to a
conflict, and a statement at the closing session as to the importance of this
point — a statement supported by the ICRC at the same session. 66
Another example of the same problem arose in the context of the
negotiations for the Protocol to the Convention on the Rights of the Child. 67 A
number of States and the ICRC spoke in favor of a rule that would prohibit all
parties to a non-international armed conflict from recruiting children under
the age of eighteen years. 68 Several States could not accept this, and the draft
now indicates two possible methods of dealing with this issue, neither of which
is satisfactory. Draft paragraph 2 merely states that the government is to ensure
that children under eighteen are not recruited; 69 draft "New Article A,"
presently in square brackets, would require governments to "take all
appropriate measures to prevent recruitment of persons under the age of 18
years by non-governmental armed groups involved in hostilities." 70 These
proposals may be doctrinally pure in the minds of strict international lawyers,
but they are hardly useful when it comes to the actual behavior oi
non-governmental groups.
The application of human rights law concepts to non-governmental forces is
far more problematic than that of humanitarian law concepts. This is because
human rights law is primarily conceived as consisting of the obligations of the
government towards its own population, not the other way around. 71 This
principle was another reason why a reference to the duties of
non-governmental groups was not accepted for the draft Protocol to the
Convention on the Rights of the Child. 72 Humanitarian law, on the other
hand, is meant to apply to both parties to a conflict; indeed, the very notion of
equality oi obligations is fundamental to the nature of this law. However, a
major problem is that although States wished these obligations to be made clear
in Common Article 3 and Additional Protocol II, they did not wish the
corollary to be true, i.e., the same rights for rebel forces.
One of the most important motivating factors for the respect of
humanitarian law is the right to the status of prisoner of war, and the certainty
of not being punished if one has not violated the rules oi international
humanitarian law. Given that this is not the case in internal armed conflicts,
what is the motivating factor for non-State entities to abide by international
law? They can hope to gain some respect, perhaps, and there is also the
recommendation in Article 6, paragraph 5, of Protocol II that the broadest
possible amnesty should be granted at the end of hostilities. It is assumed,
although not specifically indicated, that such amnesty should not apply to
those who have violated humanitarian law, at least in any serious way.
55
Humanitarian Law in Future Wars
However, this does not seem to be very persuasive, and another method will
need to be found to create a motivation to abide by the rules of international
law. In this regard, one could consider both the carrot and the stick. The carrot
could be, for example, allowing respect of international law rules to be used in
mitigation of sentence when such persons are tried in national courts. The
stick could be more rigor in trying violators of the law before international
tribunals, such as that created for Rwanda, the statute of which specifically lists
crimes that are violations of international humanitarian law applicable in
non-international armed conflicts. 73 For this reason, this author hopes that the
new Statute of the International Criminal Court will include such crimes.
Given that many persons using force in non-international armed conflicts
have not been members of an official State army, it is not surprising that they
are quite unaware of even the existence of rules applicable to such situations,
let alone their content. The ICRC tries to teach some of these rules to such
forces and has had some success, but its approach has certainly not always
worked. 74 The only way to make such forces have some idea of these rules is to
ensure that the civilian population as a whole is aware of them. This is certainly
not the case at present, and most governments have made no particular effort
to remedy this situation. In light of the increasingly destructive and
destabilizing nature of non-international armed conflicts, a determined and
serious effort in this regard must be made in the next century. However, it
should be realized that knowledge of such rules cannot assure that they will be
perfectly respected, even if supported by nongovernmental groups. As
indicated above, some of the rules relating to the conduct of hostilities require
quite sophisticated training and means. Therefore, the goal must be to reduce
the incidence of direct attacks on civilians, torture, and other acts from which
the forces involved could abstain if so inclined.
The Problem of Weapons Availability. The final element of particular
importance in relation to such conflicts is the ready availability of weapons.
The end of the Cold War and relaxation in regulations relating to arms
transfers led to significantly increased availability of weapons. The ICRC has
been asked by the twenty-sixth International Conference of the Red Cross and
Red Crescent to submit a report indicating whether there is a direct link
between this availability and violations of the law. 75 This author suspects, using
an analogy, that this effort will experience the same difficulty of proof as did the
connection between smoking and cancer but that common sense dictates that
it must be so. The more persons who without instruction or special training use
force and have firearms, the more violations there are likely to be. This
situation will get worse in the next century unless the international community
56
Louise Doswald-Beck
finds the political will to stem such arms flows. This will require not only the
creation of clear guidelines for transfers but also a means to verify their
implementation.
The Use of Armed Force by Private Persons or Groups. The armed forces o(
private entities can take the form of mercenaries (although not a new
phenomenon, one that has caused particular problems at the end of this
century), security companies (hired by private industry), or criminal groups
with extensive organization and war-making ability.
Mercenaries. The use of mercenaries is an ancient practice that shows no
indications of ceasing. In the past such persons simply had the same status, and
were entitled to the same treatment, as the group for which they were fighting,
which in turn depended on whether the conflict was international or
non-international. However, since 1977 a significant segment of the
international community has tried to eliminate this practice by, inter alia,
refusing such persons prisoner-of-war status. 76 So long as mercenaries continue
to exist, the problem of how to motivate them to abide by the rules of
international humanitarian law will remain. In this regard, the carrot-and-stick
approach suggested for nongovernmental groups in non-international armed
conflicts could prove useful.
Private Security Companies. A relatively new phenomenon is the practice of
private security companies offering their services to governments or private
industries, particularly in unstable areas where the government's normal police
force cannot provide adequate protection. The best known example is
"Executive Outcome," a security company which operates quite extensively in
Africa; a number of others are active in a variety of contexts. 77 Although such
companies are frequently referred to as "mercenaries" in the media, they do not
fall within the traditional understanding o{ the term, nor do they easily fit
within the legal definition found in Article 47 of Additional Protocol I. 78
However, they do use military methods and consist primarily of ex-soldiers.
A major issue is whether security companies are bound by any international
rules. When used by governments in the context of an internal armed conflict,
it is arguable that they form part of the government's forces and thus are bound
by the rules of non-international armed conflict. However, they are not
officially part of the government's army. Moreover, the concept of mercenaries
in Article 47 of Protocol I applies only in international armed conflicts. Insofar
as multinational or other industries use such companies, they ought to be
accountable in some way for their behavior; yet they are neither a State nor a
party to an internal armed conflict in any traditional sense of the word. The
57
Humanitarian Law in Future Wars
security companies concerned are in principle bound by the law of the State in
which they function. In reality, this will not have much effect if they actually
engage in hostilities, which press reports say that they have done in some
instances. Given the increasing influence of private industry and the growing
importance of multinational companies, the international community is going
to have to face this issue and decide whether the use of force by such companies
against armed groups should be subject to international rules. If so, a departure
will have to be made from the traditional application of international
humanitarian law to governments and armed rebel groups.
Criminal Groups. Criminal groups engaging in armed conflict include the
Mafia and various "drug lords," whose activities are extensive not only
internally but internationally. On the one hand, it seems abhorrent to suggest
that they should be bound by international humanitarian law. On the other, it
is difficult in law to justify any distinction inasmuch as traditional rebel groups
in non-international armed conflicts are also considered common criminals by
the authority they are opposing. The term "armed groups" in common Article 3
is arguably general enough to cover criminal groups, but one generally assumes
that humanitarian law has in mind groups fighting for a political purpose. This
assumption derives from the historical context of the development of the law,
but it is written nowhere. An added complication is that some rebel groups,
including a number in Colombia, ostensibly have some political purpose (albeit
often obscure), though they use straightforward criminal methods and drug
money. 79 The lack of clarity as to whether international law is applicable in
these situations makes its implementation very difficult. Even if one assumes,
as this author does, that a group should possess some political purpose if
humanitarian law is to be applicable, there remains the problem of determining
the facts. Doing so can be extremely difficult in unstable, internal conflict
situations. A tragic example of this was the murder of six employees of the
ICRC on 17 December 1996 in Novye-Atagy, Chechnya. Although an official
enquiry has opened, we are at at the time of writing still no nearer to
establishing who was responsible, or even whether the attack clearly amounted
to a violation of international humanitarian law, given that the various groups
active in that highly volatile situation included both the criminal Mafia and
armed political groups. 80
Unfortunately, there is every indication that this type of unstable situation is
likely to continue or even worsen in the next century. At the moment,
international law does not really have an answer. 81 In particular, international
humanitarian law, which is supposed to regulate the use of force, does not in its
58
Louise Doswald-Beck
present form provide concrete and practical answers as to how the law can be
applied to and implemented in such situations.
Use of Force by Multinational and Supranational Entities, The use offeree by
the United Nations was foreseen in Chapter VII of the United Nations
Charter, which also assumed that the forces would be UN forces as such.
However, only fairly recently has the question of whether the United Nations is
bound by international humanitarian law been addressed in any serious way.
The issue is not limited to the UN. Multilateral forces, whether acting under
the umbrella of a regional security organization such as NATO or as ad hoc
coalitions, also face the challenge of establishing which law applies. This issue
is at present largely considered from the perspective of interoperability. The
increasing financial and political interdependence of States is also leading to a
situation where supranational actors could be increasingly active in armed
conflict issues, the most obvious example being the new European Union's
Treaty of Amsterdam. This trend means that international humanitarian law
can no longer be limited to the behavior of individual nations; otherwise, the
defense policies of such organizations and their use offeree will not be formally
bound by any hard humanitarian law.
United Nations Forces. The issue of which law binds United Nations forces is
not a purely academic one. There have been allegations of violations of the law,
particularly in the case of United Nations operations in Somalia, wherein UN
forces have been accused of murdering noncombatants and of detaining
Somalis without allowing contact with lawyers or their families. 82 Through
participation agreements, personnel contributed by States fall formally under
the command of the UN Secretary-General. Further, the United Nations is an
international person in international law. Therefore, although one could argue
that each contingent is still bound by the humanitarian law that binds its flag
State, this conclusion is not at all satisfactory from either a legal or a practical
point of view. The area of practice is actually rather confused, with the UN
force commander being in theory responsible but with heads of national
contingents retaining a certain control. 83 The actual name given to the force
should be irrelevant, as the question of applicability of humanitarian law
should arise when hostilities actually occur, whether the contingent was meant
to be a peacekeeping force in the traditional sense or was given a more active
role. 84
The difficulty at present is that apart from cases of clear enforcement action,
UN forces are not meant to be seen as belligerents in the traditional sense of
the term. Humanitarian law is meant to apply to "parties to a conflict;" the
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Humanitarian Law in Future Wars
normal role of peacekeeping forces does not fit easily into this description. The
fact that the United Nations is not a party to humanitarian law treaties
compounds the problem. In past operations, agreements have indicated that
such forces are bound by the principles of humanitarian law but not by a
specific list of humanitarian law rules. 85 The current UN model agreement
provides that such forces "observe and respect the principles and spirit of the
general international conventions applicable to the conduct of military
personnel." 86 The ICRC has tried through expert meetings to establish which
rules are applicable to such forces, both when they intervene in
non-international armed conflict situations and during international armed
conflicts. 87 Given the difficulty of finding an answer (which this author believes
is insuperable because the law simply does not envision the situation), the
experts concerned drafted a document entitled "Guidelines for UN Forces
Regarding Respect for International Humanitarian Law." fi The fate of this
work is not clear, as these guidelines have not been officially adopted.
However, personnel at the UN Secretariat are aware that it is an issue that
needs resolving.
It is highly likely that such forces will continue to be used in the next
century, and it is simply not acceptable to allow it to remain unclear which
international legal rules govern UN forces. The international community will
need to accept and address the fact that while UN forces use force, the
traditional scope of the application of humanitarian law treaties prevents the
proper implementation of suitable rules for such forces.
Multinational Forces. Multinational forces can be specifically authorized by
the United Nations, either for an enforcement action, as with the coalition
effort against Iraq in 1991, or to conduct a humanitarian mission, such as that
in Albania. 89 In principle such forces apply humanitarian law by virtue of the
international law obligations undertaken by each State. However, with such
official authorization, the question arises as to whether such forces should
undertake as a group to apply specific rules of humanitarian law. Not all States
will be parties to the same treaties, and therefore problems of interoperability
arise. This is true for forces of a regional organization such as NATO, 90 or ad
hoc forces, like the multinational forces in Beirut in 1982-1984 91 or Liberia in
1990. 92
In that it is quite likely that multinational forces will continue to be used in
the next century, proper implementation of humanitarian law requires greater
clarity as to the rules under which they will operate and how those rules will be
carried out in practice.
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Louise Doswald-Beck
Supranational Organizations. Although there is no such thing as
"supranational" law — a matter of concern to some purist international
lawyers — the fact remains that there are arrangements whereby States have
given non-national organs powers that go well beyond the usual functions of
international organizations. The most obvious example of this is the European
Union. The Treaty of Amsterdam, adopted in 1997, contains provisions in
Title V on a "common foreign and security policy." 93 Article J. 3 states, "The
European Council shall define the principles of and general guidelines for the
common foreign and security policy, including for matters with defence
implications." More specifically, Article J.7 provides that:
The common foreign and security policy shall include all questions relating to
the security of the Union, including the progressive framing of a common
defence policy . . . which might lead to a common defence, should the European
Council so decide. It shall in that case recommend to the Member States the
adoption of such a decision in accordance with their constitutional
requirements.
The Western European Union (WEU) is an integral part of the development
of the Union providing the Union with access to an operational capability. ... It
supports the Union in framing the defence aspects of the common foreign and
security policy as set out in this Article. The Union shall accordingly foster
closer institutional relations with the WEU with a view to the possibility of the
integration of the WEU into the Union, should the European Council so
decide. . . .
The progressive framing of a common defence policy will be supported, as
Member States consider appropriate, by co-operation between them in the field
of armaments.
Questions referred to in this Article shall include humanitarian and rescue
tasks, peacekeeping tasks and tasks of combat forces in crisis management,
including peacekeeping.
The Union will avail itself of the WEU to elaborate and implement decisions
and actions of the Union which have defence implications.
Although the provision does not mean that the European Union will have
its own army as such, it comes close. More importantly, the Union is to have its
own policies relating to armed conflict situations, whether for its own defense
or in relation to other armed conflicts. The European Union as such is not a
party to humanitarian law treaties, but the question arises as to whether it is
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Humanitarian Law in Future Wars
bound by them. Does customary law bind it? These are fundamental questions
for the implementation of humanitarian law.
The ICRC attempted to persuade European Union States to include
references to international humanitarian law in the sections o{ the treaty
dealing with foreign and security policy. 94 Other parts of the treaty make
reference to the importance o( respecting human rights law; therefore, such a
mention of humanitarian law in the relevant sections would have been totally
appropriate. These efforts were unsuccessful, an extremely unfortunate
outcome in this author's opinion.
In the light of such developments, States cannot continue to simply assume
that the present scope of application of humanitarian law treaties suffices.
What if the European Union uses the WEU in an internal armed conflict in a
way that involves fighting? Does all law apply, or only that law applicable to
internal armed conflicts? What of the duty of States in common Article 1 of the
Geneva Conventions to respect them and ensure their respect? Does the
obligation also apply to policies of the European Union as such? Which body
will implement whatever is supposed to be the applicable law? The European
Court of Justice even though there is no mention of humanitarian law in any of
the European Union treaties? Do the general references to human rights in the
Maastricht and Amsterdam treaties suffice? Such issues will have to be faced in
the future, although it would be better to do so before becoming involved in a
difficult situation.
Implementation Mechanisms
It may seem strange in an article about implementation to refer to
implementation mechanisms only rather briefly, in closing. However, this
author believes that the preceding issues are more fundamental to the
problems oi implementation procedures. Mechanisms will only be efficient if
the will exists to make them so, and that depends on the factors outlined
earlier. Therefore, this section will not explore existing and potential
implementation mechanisms in detail; 95 rather, it will look at factors that are
relevant for such mechanisms in the future.
National Mechanisms, Obviously, if the implementation mechanisms already
foreseen for the national level had been carried out, we would be in a much
better situation than we are now. In the face of the enormous challenge of
rectifying the present situation, the ICRC's new Advisory Service 96 has had to
set priorities. 97 It has therefore decided to try to create a snowball effect by
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Louise Dosivald-Beck
encouraging the creation of national commissions responsible for national
implementation of humanitarian law. 98 It is also making particular efforts to
induce States to comply with their duty under the Geneva Conventions to
provide for universal jurisdiction for grave breaches." In this regard, there can
be no doubt that if States could arrange for the direct applicability of the treaty
provisions, a great deal would be gained. This could perhaps ultimately make
national courts able not only to try war criminals more effectively but also to
award reparation to victims of violations. At present, the latter possibility is
being explored by the Human Rights Commission, 100 and there are cases being
brought by individuals before national courts asking for reparations for
violations committed during the Second World War. 101 Success by such
individuals would almost certainly motivate governmental and nongovern-
mental bodies to abide by their obligations with greater care.
Some imagination and determination will also be needed to make sure that
the civilian population as a whole is aware, at least at the most basic level, of
certain rules of armed conflict. In formal teaching, the topic could be introduced
into a number of traditional school courses, probably together with some notions
of human rights. However, other methods will also be necessary. In particular,
efforts should be made to stem teaching that encourages violations of the law.
For example, behaviors that should not be introduced in computer games could
be made known to game creators, and those that should be promoted could be. It
has already been suggested that industries developing new weapons should
become aware of certain international rules. They have at least one strong
motivation for making an effort to do so, namely, the thought of the money they
would waste should they develop a weapon that is then formally prohibited!
International Mechanisms* Reference has already been made to the
importance of an effective international criminal court, and to the conditions
that are necessary for one. Provision for commissions of inquiry already
exists, 102 and some investigation has occurred on an ad hoc basis, such as the
investigation into violations of the law in the former Yugoslavia 103 and
Rwanda, 104 and the country rapporteurs established in the context of the
Human Rights Commission. 105 Assessing violations of methods of warfare will
remain particularly difficult, because factors relating to the assessment of
military objectives and proportionality have an important subjective element.
However, such inquiry remains a useful mechanism, and it is hoped that it will
be used more in the future.
It remains to be seen whether other mechanisms could be introduced that
would be useful to encourage better implementation of humanitarian law in
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Humanitarian Law in Future Wars
future wars. The suggestion has been made to introduce a reporting system in
which States could inform a body on the measures they have taken to
implement humanitarian law. 106 Such reporting systems are being used in other
contexts, with mixed results (determined by a number of factors). 107 In the
context of humanitarian law, such a system would have greater likelihood of
acceptability and success once States have taken more effective national
measures, which it is hoped will be the fruit of the Advisory Service's efforts
and of the fuller understanding being gained these days of the importance of
this aspect of law.
One area that should certainly be improved is the evaluation, at the
research stage, of the likely lawfulness of weapons. 108 At present, evaluations
are made either at the national level or at the international level if a particular
weapon is called into question. In the latter case, assessments are hampered by
the lack of unclassified information. The case of blinding laser weapons was
somewhat special because there had been extensive use of lasers by
ophthalmologists for eye surgery and by the military for nonoffensive purposes;
this enabled experts to extrapolate the likely features and effects of the
forthcoming proposed weapons. 109 In most cases, however, a weapon has to
appear on the battlefield, and even be generally available, before an evaluation
can occur. Obviously, there will be resistance to legal evaluation at this stage
given the investment that will have gone into its development. Over the last
hundred years, no State leader has shown the kind o( altruism that the czar of
Russia did when he convened an international conference to ban a weapon
developed by his own scientists! 110
This author is well aware of the highly sensitive nature of this issue, but
given the crisis in the implementation of humanitarian law created by the
totally new weapons of the twentieth century, and given the need for practice
to be in conformity with law rather than in constant tension with it, an
evaluation of the foreseeable effects of contemplated new weapons is the only
way to implement this area of law effectively. Such an evaluation cannot be left
to a totally national mechanism, but must include unbiased and neutral
persons. With present rapid technological and biotechnological developments,
this will be crucial for the twenty -first century. This process would be helped by
the establishment of more objective data and criteria for evaluating whether
certain weapons present problems in relation to the rules prohibiting
inherently indiscriminate weapons or those that cause superfluous injury or
unnecessary suffering. 111 A mechanism will also need to be found that will
sufficiently protect the sensitive nature of the material. This author believes
that if the political will were present, it would not be impossible to find one.
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Louise Doswald-Beck
Such a mechanism could also study the likely effects of means or methods of
warfare on the environment. 112 The relative novelty of this problem makes it
difficult at present to foresee with accuracy the extent and permanence of
environmental damage that will occur. However, with the degree of present
environmental degradation, the world's ever-increasing population, and
forecasts of water shortages, 113 all the elements of future disaster are present.
Not only are these factors likely to be the cause of a number of wars in the next
century, but the problem will be exacerbated if means or methods of warfare
significantly contribute to further environmental damage.
Although it is a sensitive issue, further thought needs to be given to the fact
that the possibility of nuclear war remains. Despite all efforts to stem
proliferation, it is not impossible that a State or group could decide to use these
weapons without fearing or caring about retaliation. All existing mechanisms
to prevent such an occurrence need to continue. In addition, now that the
Cold War has ended, more serious attention should be given to the Advisory
Opinion of the International Court o{ Justice that there is an obligation to
achieve "nuclear disarmament in all its aspects under strict and effective
international control" through bona fide negotiation. 114
Reference has already been made to the need to find better means to
implement humanitarian law in non-interstate conflicts. Specific mechanisms
should also be considered, for implementation by international and
"supranational" bodies, of a system of reparations for victims of violations and
of punishment for offenders. The implementation of the law in
non-international armed conflicts and in so-called "internationalized" ones
would benefit from an independent and impartial qualification o{ the conflict.
The ICRC frequently does not do this publicly because of possible implications
for its field work. The ideal situation, of course, would be for an independent
court to undertake this task, but it could also be given to an independent
commission. The experience of human rights law shows that mechanisms
allowing for individual petition are particularly successful in ensuring that
issues are addressed. 115 Through this channel, cases relating to situations which
may qualify as armed conflicts have been brought under the European
Convention on Human Rights, but the European Commission of Human
Rights or European Court of Human Rights does not have to make such a
qualification, as it is unnecessary for the application of human rights law. 116
Finally, it is worth addressing the particular role of civil society, in particular
nongovernmental organizations. Until now the implementation of
humanitarian law has been largely left to governments. 117 The only official
nongovernmental role was that given to the ICRC, in particular through its
65
Humanitarian Law in Future Wars
visits to prisoners of war 118 and civilian internees 119 and its role relating to the
Central Tracing Agency 120 in international armed conflicts. A recognition of
additional roles that it may undertake, with the consent of the parties to the
conflict, is found in various other parts of the Conventions, including roles
during non-international armed conflicts. References are also made to national
Red Cross or Red Crescent societies. The recognized role of the ICRC in
fostering the development of humanitarian law means that in practice it is
given observer status at diplomatic conferences relating to international
humanitarian law. 121 In this context it is frequently requested to prepare
documentation and allowed to make statements and proposals.
Until now, other organizations have not had any such formal role.
Therefore, it was a significant development when the Norwegian government
decided to allow the International Campaign to Ban Landmines the same
observer status as the ICRC during the diplomatic conference that led to the
adoption of the antipersonnel mine ban treaty in September 1997. The
contribution of this organization is specifically mentioned in the preamble to
the treaty, the relevant paragraph of which makes a point of "stressing the role
of public conscience in furthering the principles of humanity as evidenced by
the call for a total ban o{ antipersonnel mines and recognizing the efforts to
that end undertaken by the International Red Cross and Red Crescent
Movement, the International Campaign to Ban Landmines and numerous
other non-governmental organisations around the world." 122 Language from
the Martens Clause was intentionally included. 123 This means that the
"Ottawa process," which culminated in signature by many States of the treaty
banning antipersonnel mines in Ottawa in December 1997, specifically
recognized the importance of civil society monitoring the implementation of
humanitarian law and being involved in its development where appropriate.
Those States which did not participate in this process cannot be said to
approve this practice, and therefore one cannot say that it is a universally
accepted tendency. However, it does reflect the already existing practice of
human rights bodies giving a recognized role to nongovernmental
organizations. 124 The next century may well see, therefore, an important
development in this direction for humanitarian law.
Conclusion
The twenty-first century could easily witness a catastrophic lack of
humanitarian law implementation, with much of it being seen as irrelevant
because the vast majority of conflicts are not classic inter-State ones.
66
Louise Doswald-Beck
Dangerous new means and methods of warfare, ideological conflicts, and
further rampant arms proliferation, all taking place in the context of an
increasingly disturbing environmental situation, could easily spell disaster.
Political will could prevent such a scenario, but this requires a willingness to
depart from the usual way of thinking. Efforts should be made to establish how
the law can be applied to nontraditional situations, and effective mechanisms
put in place. Whether this will be done essentially depends on how important
the regulation of armed conflict is considered to be when balanced against
competing interests. It also depends on whether one is willing to be farsighted
and realize the long-term interest in preserving the values of humanitarian
law — an application of enlightened self-interest. The author is enough of a
realist not to expect this to happen by itself. However, certain tendencies do
give hope. Humanitarian law is more talked of these days than it was even a few
years ago, and some mechanisms are beginning to work, albeit for the time
being in a rather uneven fashion. The further involvement of civil society has
been important for this development, and there is no obvious reason why it
should weaken in the future. Therefore, it may well be that the implementation
of humanitarian law, whatever its exact content needs to be in the next
century, will improve compared with this one. One can try to be an optimist!
Notes
The views expressed in this paper are entirely the personal ones of the author. They do not
necessarily represent the views of the International Committee of the Red Cross, and they in no
way engage its responsibility.
1. Throughout this paper, the term "practice" will be used in the sense of actual behavior
on the battlefield, and not in the sense given to it for the purpose of assessing customary
international law, which would include statements made by States.
2. II Oppenheim, INTERNATIONAL LAW: DISPUTES, WAR AND NEUTRALITY, para. 157
(7th ed., Lauterpacht ed., 1952).
3. See SPAIGHT, AIR POWER AND WAR RIGHTS 240 (2d ed. 1933) ; General Orders No.
100, Instructions for the Government of Armies of the United States in the Field, Apr. 24, 1863,
art. 23, reprinted in THE LAWS OF ARMED CONFLICTS 3 (Schindler & Toman eds., 1988)
[hereinafter Lieber Code].
4. Lieber Code, supra note 3, arts. 16 & 71.
5. For example, the rule requiring the giving of quarter to those who surrendered or were
hors de combat was probably respected by a soldier who took his reputation and honor seriously,
whether the opposing side fully respected the rule or not.
6. Lieber Code, supra note 3, art. 24.
7. For a description of the negotiating history, see Kalshoven, The Soldier and His Golf
Clubs, in STUDIES AND ESSAYS ON INTERNATIONAL HUMANITARIAN LAW AND RED CROSS
PRINCIPLES IN HONOUR OF JEAN PICTET 369, 375 (Swinarski ed., 1984). The British delegate to
67
Humanitarian Law in Future Wars
the 1899 Hague Conference argued that "savages" did not stop when shot, as "civilized" soldiers
did.
8. E.g., Convention Respecting the Laws and Customs of War on Land, Oct. 13, 1907, art.
2, 36 Stat. 2277, 205 Consol. T.S. 277, reprinted in Schindler & Toman, supra note 3, at 63
[hereinafter Hague IV].
9. Lieber Code, supra note 3, art. 60.
10. This problem became an issue after the attack on electrical power stations during the
second Gulf War.
11. The difficulty in getting blinding laser weapons prohibited was outlined by this author
in Obstacles to Regulating New Weaponry: Battlefield Laser Weapons, in ARMED CONFLICT AND
THE NEW LAW: EFFECTING COMPLIANCE 107 (Fox and Meyer eds., 1993). A description of
efforts to develop the law relating to certain weapons this century and prospects for the future is
described in PROKOSCH, THE TECHNOLOGY OF KILLING (1995).
12. A number of recent publications describe such developments. See, e.g., NATIONAL
Research Council, Star 21 : Strategic Technologies for the Army of the
TWENTY-FIRST CENTURY (1992); Gassman, High Power Microwave: The Silent Threat,
4 ARMADA INTERNATIONAL 4 (1997); Cassidy, Guess Who's the Enemy, THE PROGRESSIVE,
January 1996, at 22-24; RF Weapons, MICROWAVE NEWS, January/February 1996.
13. Protocol IV on Blinding Laser Weapons, Oct. 13, 1995, 35 I.L.M. 1218 (1996),
annexed to the Convention on the Use of Certain Conventional Weapons Which May be
Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 19 I.L.M.
1524 (1980) [hereinafter Certain Conventional Weapons Convention]. The Protocol is
reprinted at Doswald-Beck, New Protocol on BlindingLaser Weapons, INTL REV. RED CROSS, No.
312, 1996, at annex.
14. See, e.g., Barnaby, Civil Science Could Drive Tomorrow's Nukes, 1 JANE'S INTL DEF. REV.
61 (1997).
15. A series of articles on the Biological Weapons Convention and present negotiation for
strengthening its implementation have been published in the INT'L REV. RED CROSS, No. 318,
1997, at 251-307.
16. Recent literature on this subject includes DANDO, A NEW FORM OF WARFARE: THE
Rise in Non-Lethal Weapons (1996); Lewer & Schofield, Non-Lethal Weapons: A
Fatal Attraction? (1997).
17. The International Court of Justice in its advisory opinion on nuclear weapons
confirmed that these rules mean that certain weapons are illegal as a result of these rules whether
there is a specific treaty prohibiting them or not. Legality of the Threat or Use of Nuclear
Weapons, General List No. 95 (Advisory Opinion of the International Court of Justice, July 8,
1996), paras. 78-79, 35 I.L.M. 809 (1966) thereinafter Nuclear Weapons].
1 8. This point will be returned to below in the context of the influence of human rights law.
19. In this regard, see, for example, Hampson, Fighting by the Rules: Instructing the Armed
Forces in Humanitarian Law, INTL REV. RED CROSS, No. 269, 1989, at 111; Begines, The
American Military and the Western Idea, MIL. REV., March 1992, at 39.
20. Particular efforts to improve this situation have been made by the ICRC over the last
ten years, and mention should also be made of the courses organized by the International
Institute of Humanitarian Law. Ideally, such courses ought not to need to provide basic teaching
of the law but rather an exchange of views on implementation, trends, etc.
21. Although there have been some war crimes trials, these have been the exception rather
than the rule. The Nuremburg and Tokyo trials are still seen by many as "victors' justice;" the
Yugoslav and Rwanda tribunals are recent and rare examples. The ICRC's Advisory Service is
68
Louise Doswald-Beck
presently making major efforts to persuade States to implement in their internal legislation
universal jurisdiction for war crimes. However, is it unfortunately noteworthy that most States
were not keen to discuss the issue of national repression of war crimes during the first periodic
meeting of States (to be held by Switzerland in January 1998). Such periodic meetings to discuss
general problems in the implementation of international humanitarian law were formally
accepted by the 26th International Conference of the Red Cross and Red Crescent, December
1995, Resolution 1.
22. Draft as it appeared at the working session of the preparatory committee, August 1997,
U.N. Doc. A/AC.249/1997/WG.3/CRP.l/Rev.l, draff art. 23 para. 3.
23. Id., draft art. 21 bis, para. 1.
24. For a comparative analysis of both areas of law, see, for example, Doswald-Beck & Vite,
International Humanitarian Law and Human Rights Law, INT'L REV. RED CROSS, No. 293, 1993, at
94.
25. U.N. CHARTER art. 1(3).
26. Common Article 3 of the Geneva Conventions.
27. A direct reference to human rights law was made in the preamble to this resolution in
terms which reflected the preoccupation of much of the international community at the time:
Noting also that minority racist or colonial regimes which refuse to comply with the . . .
principles of the Universal Declaration of Human Rights frequently resort to executions
and inhuman treatment of those who struggle against such regimes and considering that
such persons should be protected against inhuman or brutal treatment.
The resolution was adopted by a vote of 67-0, with two abstentions. This resolution, and two
subsequent ones adopted by the General Assembly in 1968 and 1979 (Resolutions 2444 and
2675 respectively), ultimately led to the negotiation and conclusion of the two Additional
Protocols of 1977 to the Geneva Conventions.
28. Article 6, which is very similar to Article 6 of the 1950 European Convention on
Human Rights and Fundamental Freedoms, Article 14 of the United Nations Covenant on Civil
and Political Rights of 1966, and Article 8 of the American Convention on Human Rights of
1969.
29. Recommendations of UN rapporteurs indicate that certain judicial guarantees should
be non-derogable. Reports by Ms. Questiaux, U.N. Doc. E/CN 4/Sub. 2/1982/15, and Messrs.
Chernichenko and Treat, U.N. Doc. E/CN.4/Sub. 2/1990/34- The ICRC was not as careful prior
to the 1970s as it is now to ensure that human rights treaties give at least as much protection as
humanitarian law ones.
30. E.g., its discussions and work on reparations for violations of human rights and
humanitarian law, U.N. Doc. E/CN.4/Sub.2/1996/17; impunity, U.N. Doc. E/CN.4/Sub.2/1996
18; internally displaced persons, U.N. Doc. E/CN. 4/ 199 7/43; etc.
31. Reports on the Question of the Use of Mercenaries as a Means of Violating Human
Rights, U.N. Doc. Nos: E/CN .4/1 997/24, E/CN. 4/ 1996/2 7, E/CN. 4/1 995/29, E/CN. 4/1 994/23,
E/CN.4/1993/18.
32. Report on the Situation of Systematic Rape, Sexual Slavery, and Slavery-like Practices
during Periods of Armed Conflict, U.N. Doc. E/CN.4/Sub.2/1996/26.
33. Mr. Felix Ermacora, first appointed by the Economic and Social Council in 1984 by
Resolution 1984/37. The mandate was subsequently renewed yearly. A new rapporteur, Mr.
Choong-Hyun Paik, was appointed in April 1995. Many of the elements in these reports relate
directly to the armed conflict situation in that country.
34. Report on the Situation of Human Rights in the Territory of the Former Yugoslavia,
U.N. Docs. A/47/666; E/CN.4/1992/S-19; E/CN. 4/1 996/6; E/CN. 4/ 199 6/9; E/CN. 4/ 199 7/8.
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Humanitarian Law in Future Wars
35. Situation of Human Rights in Occupied Kuwait, U.N. Doc. E/CN .4/1 992/26.
36. Report on the Situation of Human Rights in Rwanda, U.N. Doc. E/CN .4/1995/1 2.
37. Report of the Working Group on a Draft Optional Protocol to the Convention on the
Rights of the Child on Involvement of Children in Armed Conflicts, U.N. Doc. No.
E/CN.4/1997/96.
38. Two notable human rights non- governmental organizations have begun to report on
the respect or otherwise of international humanitarian law. See, e.g., MIDDLE EAST WATCH,
Needless Deaths in the Gulf War (1991), and Amnesty International, Unlawful
Killings During Operation "Grapes of Wrath" (1996).
39. Although, due to the consensus rule, Protocol III of the Convention on Certain
Conventional Weapons [19 I.L.M. 1394 (1980)] does not actually contain such a prohibition,
there can be no doubt that the political sensitivity of incendiary weapons has in practice virtually
eliminated their use against personnel.
40. During the 25th International Conference of the Red Cross.
41. Most notably, the Human Rights Watch Arms Project. For a descripion of the
development of this treaty, see Doswald-Beck, supra note 13, at 272.
42. G.A. Res. 51/45S, Dec. 10, 1996.
43. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction, Sept. 18, 1997, 36 I.L.M. 1507 (1997)
[hereinafter Mine Convention], and draft U.N.GA 1st Committee Res. A/C. 1/52/L.l, Oct. 22,
1997, inviting all States to sign and then ratify this Convention.
44. An important publication on this subject is HUMAN RIGHTS WATCH ARMS PROJECT
& Physicians for Human Rights, Landmines: A Deadly Legacy (1993).
45. Which hired Jody Williams, the corecipient of the Nobel Peace Prize, for the purpose.
The organization published an in-depth study in 1995 on the effects of mines. ROBERTS &.
Williams, After the Guns Fall Silent: The Enduring Legacy of Landmines (1995).
The idea for such a study arose as one of the conclusions of a seminar on the subject of
antipersonnel landmines hosted by the ICRC in Montreux in 1993.
46. The ICRC was particularly active in this regard, with the considerable help of other
components of the Red Cross and Red Crescent Movement. It made more use of the media and
the press than for any other issue.
47. See, for example, the conclusions of the ICRC-mandated military study
Anti-personnel Landmines: Friend or Foe (1996), and the open letter to the same effect
signed by 15 retired United States generals (including Norman Schwarzkopf) to President
William Clinton in April 1996.
48. The attacks on the Ameriyya air raid shelter by U.S. forces during the second Gulf War
and on the Qana UN compound by Israeli forces are commonly attributed to mistakes.
49. Coupland & Samnegaard, Development and Transfer of Conventional Weapons: The
Implications for Civilian Casualties (unpublished manuscript on file with author).
50. Anti-personnel Landmines, supra note 47, concl. 3 (for the difficulties).
51. "With this distance between the user and the victim, the user feels less responsible for
his or her actions." GROSSMAN, ON KILLING: THE PSYCHOLOGICAL COST OF LEARNING TO
Kill in War and Society (1995).
52. Hague Conventions VI, VII, VIII, IX, X, XI, XII, reprinted in Schindler & Toman, supra
note 3, at 719, 797, 803, 881, 331, 819, & 825 respectively, http://www.tufts.edu/departments/
fletcher/multi/warfare.html. The London Declaration of 1909 did not come into force, and the
London Proces- Verbal of 1936 only dealt, and rather imperfectly, with one aspect of submarine
warfare.
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Louise Doswald-Beck
53. Judgment of the International Military Tribunal for the Trial of German War Criminals
109 (London CMD 6946, 1946).
54. San Remo Manual on International Law Applicable to Armed Conflicts
AT SEA (with explanation) (Doswald-Beck ed., 1995).
55. Id., paras. 136-140 & pp. 206-210.
56. This is not always the case. For example, the lack of such personal hatred helped the
implemention of the law in the South Atlantic conflict of 1982 between the United Kingdom
and Argentina.
57. A general analysis of combat stress disorder and its effects was made in the context of
the Second Group of Experts convened by the ICRC in November 1990, one of the four
meetings of experts relating to battlefield laser weapons. See Blinding Weapons, Reports of the
Meetings of Experts Convened by the International Committee of the Red Cross on Battlefield
Laser Weapons (Doswald-Beck ed., 1993), in particular the report by Dr. A. Shalev, Emotional
Health Problems Arising from Battle Situations and Injuries Suffered in Battle, id. at 272-6.
58. A thorough analysis of stress factors on soldiers and measures to be taken to reduce
excessive and debilitating combat stress has been made by a military officer: DlNTER, HERO OR
Coward: Pressures Facing the Soldier in Battle (1985).
59. Blinding Weapons, supra note 57, at 281, 287-9.
60. Id. See also DlNTER, supra note 58, at 73.
61. ICAO Doc. C-W P/8708; Report of July 28, 1988 from Rear Admiral Fogarty, USN, to
the Commander in Chief, U.S. Central Command, endorsed on 5 August 1988 by the
Commander in Chief and on 18 August 1988 by the Chairman of the Joint Chiefs of Staff, at
E-59.60&62.
62. For a description of the negotiation, see Junod, Additional Protocol II: History and Scope,
33 AM. U.L. REV. 29 (1983).
63. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protections of Victims of Non- International Armed Conflicts (Protocol II), June 8, 1977,
arts. 3c, 11, 14, & 15, U.N. Doc. A/32/144, Annex II (1977), 16 I.L.M. 1942 (1977), reprinted in
Schindler &. Toman, supra note 3, at 621.
64. Study requested by the 26th International Conference of the Red Cross and Red
Crescent, Resolution 1, which approved the recommendations of the Meeting of the
Intergovermental Group of Experts for the Protection of War Victims, January 1995, reprinted in
Inpl Rev. Red Cross, No. 310, 1996, at 83-^84.
65. Colombian Proposal of Sept. 3, 1997, Doc. APL/CW.46. Another complication was
that the conference did not want any language that could give the impression that the scope of
application was other than in all circumstances.
66. Closing session of the Oslo Conference, 18 September 1997.
67. Working Group on Involvement of Children in Armed Conflict, 3d sess., Commission
on Human Rights, March 13, 1997.
68. See Report of the Working Group, supra note 37, at para. 1 15.
69. Id., annex.
70. Id.
71. Although there are references to duties in the 1948 American Declaration of the Rights
and Duties of Man, O.A.S. Off. Rec. OEA/Ser. L/V/I.4 Rev. (1965), and the 1982 African
Charter on Human and People's Rights (Banjul Charter), 21 I.L.M. 58 (1982).
72. This point was made forcefully by the delegate of the government of the Netherlands.
73. Statute for the International Tribunal for Rwanda 35 I.L.M. 1598 (1940).
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Humanitarian haw in Future Wars
74- For example, Afghan rebel groups were successfully persuaded not to kill enemy soldiers
when captured, and quite a major change in the behavior of rebel forces in El Salvador was also
achieved. See, e.g., HAMMER, DEVELOPING A HUMANITARIAN AWARENESS: A CASE-STUDY
OF EL SALVADOR IN THE 1980'S, (Henry Dunant Institute, 1987) . However, it does not always
work. For example, a rebel group in Colombia specifically declined to apply Common Article 3,
because it wished to continue to take hostages.
75. Resolution 1, supra note 61, at 88.
76. In particular, in art. 47 of Additional Protocol I. Protocol Additional to the Geneva
Conventions Relating to the Protection of Victims of International Armed Conflicts, June 8,
1977, art. 47, U.N. Doc. A/32/144, 16 I.L.M. 1391.
77. See. e.g., Broker of War and Death, MAIL AND GUARDIAN, Feb. 28-Mar. 6 1997, at 12.
Executive Outcome states that it only works for recognized governments.
78. See, e.g., Mercenaries Eye Sierra Leone, GLOBE AND MAIL, Aug. 1, 1997.
79. For a description of these kinds of activities, see BALENCIE &. DE La GRANGE,
1 MONDES REBELLES: ACTEURS, CONFLITS ET VIOLENCES POLITIQUES (Ameriques, Afrique)
(1996). The criminal and financial activities of Colombian rebels, and measures resorted to by
private companies, are described on page 105.
80. During his statement on 18 December 1996 to the Permanent Missions of States in
Geneva, the President of the ICRC alluded to this difficulty. He questioned whether one could
speak directly of violations of international humanitarian law or whether one had rather to speak
more generally of violations of "values" of the international community. He specifically
mentioned the need to find a way to assure, in practice, respect toward medical personnel,
hospitals, and the protective emblem. Statement in the compilation of public statements of the
ICRC relating to its activities in Chechnya and Northern Caucasus, July 1993-10 January 1997,
LG 1997/013.
81. The situation is even more acute when State structures have broken down. The 26th
International Conference of the Red Cross and Red Crescent asked the ICRC to prepare a report
on this problem, and the subject was briefly considered during the first Periodical Meeting on
international humanitarian law that was convened by the Swiss government in January 1998.
The preparatory document on this subject was prepared by the ICRC.
82. See, e.g., Tittemore, Belligerents in Blue Helmets: Applying International Humanitarian
law to United Nations Peace Operations, 33 STAN. J. INTL L. 61, 89-90 (1997). See also
Canadian Government, Dishonoured Legacy: The Lessons of the Somalia Affair
(1997).
83. Id. at 80.
84- Peacekeeping forces were first involved in combat in the Congo, but since then
problems have occurred elsewhere, particularly when their mandate and instructions were not
totally clear. For a short history of the various peacekeeping operations, see Liu, The Use of
Force in U.N. Peacekeeping Operations: A Historical Perspective (J une 20, 1996) (paper
delivered at the International Peace Academy in Vienna, July 1996). At present, there are
sixteen UN peacekeeping operations active around the world (see
http://www.un.org/Depts/DPKO/c_miss.htm).
85. For more information and references to further literature on this issue, see Tittemore,
supra note 81, at 87-89.
86. Comprehensive Review of the Whole Question of Peacekeeping Operations in All
Their Aspects, Model Agreement Between the United Nations and Member States
Contributing Personnel and Equipment to United Nations Operations, Report of the
Secretary-General, para. 28, U.N. Doc. A/46/185 (1991).
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Louise Doswald-Beck
87. Symposium on Humanitarian Action and Peace-keeping Operations, June 1994;
Meeting of Experts on the Applicability of International Humanitarian Law to United Nations
Forces, March 1995 (for expert meetings).
88. The experts included governmental, academic and UN personnel, all acting in their
personal capacities.
89. S.C. Res. 1101 (1997).
90. The issue of how to use its own peacekeeping forces has also arisen in the context of the
Organization for Security and Cooperation in Europe. Such forces have not yet been used,
although there was a long negotiation in 1993-1994 about their possible use in
Nagorno-Karabach. The precise nature of such forces has not yet been established, and therefore
they could face the same kind of difficulty as do those of the United Nations. For a description of
how such operations could work, see GHEBALI, L'OSCE DANS V EUROPE POST-COMMUNISTE,
1990-1996, 243-4 (1996).
91. Consisting of U.S., British, French, and Italian contingents. See Nelson, Multinational
Peacekeeping in the Middle East and the United Nations Model, INTL AFF., 1984/5, at 67, 71-80.
92. The ECOWAS Monitoring Group was set up by decision of a summit of African States
that met in Banjul. See BALENCIE &. DE La GRANGE, supra note 79, at 284-
93. The Treaty's full title: Treaty of Amsterdam Amending the Treaty on European Union,
the Treaties Establishing the European Communities and Certain Related Acts.
94- In particular, it gave to the presidency of the European Union in September 1996 a
proposal of wording. For Article J. 4 it suggested the following: "All decisions relating to a
common defence policy and actions of the Union which have defence implications shall be in
conformity with international humanitarian law and help ensure its respect."
95. For a more extensive look at implementation mechanisms, see Roberts, The Laws of
War: Problems of Implementation in Contemporary Conflicts, 6 DUKE J. COMP. & INTL L. 11
(1995).
96. Created on the recommendation of the Meeting of the Intergovernmental Group of
Experts for the Protection of War Victims, supra note 64, at 84.
97. For a general description of its activities, see National Implementation of International
Humanitarian Law: Annual Report 1966, Advisory Service on International Humanitarian Law.
98. A report of a meeting of experts on this issue was published as Committees or Other
National Bodies for International Humanitarian Law (Pellandini ed., 1997).
99. A meeting of experts was convened by the Advisory Service in September 1997 to
discuss this issue in the context of civil law systems, and another is due to be held in 1998 for the
context of common law systems.
100. By Special Rapporteur Mr. Theo Van Boven. See note 30 supra.
101. For example, cases presently being heard by the Tokyo district court relating to ill
treatment of Dutch prisoners of war and the abuse of so-called "comfort women." Professor Frits
Kalshoven was asked to appear as an expert witness for these cases in order to render his opinion
as to whether victims of violations were entitled to reparations by virtue of Article 3 of Hague
Convention IV of 1907. His opinion was in the affirmative. Information given by Prof.
Kalshoven during the Fourth Hague Joint Conference of the American Society of International
Law and the Nederlandse Vereniging vour Internationaal Recht, July 3, 1997.
102. In particular, the International Fact-Finding Commission, established under Article 90
of Additional Protocol I, but which has not yet been used.
103. Commission of Experts established pursuant to S.C. Res. 780 (1992).
104. Report of the Independent Commission of Experts established in accordance with S.C.
Res. 935 (1994), U.N. Doc.S/1994/1125.
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Humanitarian Law in Future Wars
105. Examples given in notes 33-36 supra.
106. During the Meeting of the Intergovernmental Group of Experts for the Protection of
War Victims referred to in note 64 supra. The proposal was made by the Netherlands and
supported by several States but did not command sufficient support to be included in the
meeting's recommendations.
107. A variety of factors are responsibile for the mixed results. These were thoroughly
analyzed in a report entitled "A Comparison of Self- Evaluating State Reporting Systems"
prepared by E. Kornblum for the meeting. Reprinted in INPL REV. RED CROSS, Nos. 304 and 305,
1995, at 39 and 134 respectively. The whole text is also available as an offprint.
108. Article 36 of Protocol I obliges States to make such an evaluation, but this provision is
only an articulation of what States are obviously bound to do in a bona fide implementation of
humanitarian law.
109. Meeting of the First Working Group of Experts, supra note 57, at 95-173.
110. Bullets that exploded on contact with the human body, banned by the St. Petersburg
Declaration of 1868.
111. This was done to some degree in the context of the Second Group of Experts on
Battlefield Laser Weapons, supra note 57, at 179-183, 244-257, and 289-292.
112. As a result of expert meetings, the ICRC drafted a document entitled "Guidelines for
Military Manuals and Instructions on the Protection of the Environment in Times of Armed
Conflicts," 1994, submitted pursuant to G.A. Res. A/RES/48/30, Dec. 9, 1993. However, these
guidelines merely indicated the present content of humanitarian law having the function of
protecting the environment; the problem of how to make the scientific evaluation still remains.
It is also worth noting the Advisory Opinion of the International Court of Justice, which
indicated the general requirements of States in this regard under customary law. Nuclear
Weapons, supra note 17, paras. 29-30.
113. On the potential problems of serious water shortages, see, e.g., Starr, Water Wars,
FOREIGN POL'Y, Spring 1991, at 17; Remans, Water andWar, HUMANITARES VOLKERRECHT:
INFORMATIONSSCHRIFTEN 4 (1995).
114. Nuclear Weapons, supra note 17, para. 105 F.
115. The 1950 European Convention on Human Rights; the 1969 American Convention on
Human Rights; 1966 Optional Protocol to the U.N. Covenant on Civil and Political Rights (on
individual petition) .
116. Particularly pertinent cases are those of Ergi against Turkey before the Commission,
and Aydin against Turkey before the Court. The case of Ergi is especially interesting as it
concerns actions by security forces against Kurdish groups resulting in deaths of civilians. The
Commission found a violation of Article 2 (the right to life), because the security forces did not
take enough care in their operations to avoid civilians and because they did not thoroughly
investigate the death which was the subject of this case: Muharrem Ergi v. Turkey, Report of the
Commission, May 20, 1997, paras. 144-156. The case of Aydin concerned the ill treatment of a
girl detained by security forces in the context of "serious disturbances" between members of the
security forces and members of the PKK which, according to the government, had claimed the
lives of 4,036 civilians and 3,884 members of the security forces. The Court found that there was
a violation of Article 3 and that the treatment she suffered, including rape, amounted to torture.
Aydin v. Turkey, Judgment of the European Court of Human Rights, Sept. 25, 1997, paras. 14 &
80-87. Another interesting case concerned the situation in northern Cyprus, where the court
found a violation to the right to property and the Turkish government responsible because of its
military occupation of the area. Loizidou v. Turkey, Judgment of the European Court of Human
Rights, Dec. 18, 1996, paras. 16-23 & 41-64.
74
Louise Doswald-Beck
117. Protecting Powers, formal complaints, investigations by the U.N., etc. The
International Fact- Finding Commission would not be a governmental mechanism as such, for its
members act in their personal capacities. Additional Protocol I, supra note 75, art. 90(1) (c).
118. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 1 2, 1949, art.
126, 6 U.S.T. 3316, 75 U.N.T.S. 135.
119. Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, art. 143, 6 U.S.T. 3516, 75 U.N.T.S. 287.
120. Third Geneva Convention, supra note 118, art. 123, and Fourth Geneva Convention,
supra note 119, art. 140.
121. Statutes of the International Red Cross and Red Crescent Movement, as updated at the
Twenty- fifth International Conference of the Red Cross (at which all signatories participate),
art. 5, para. 2.g, Oct. 1995 (for the ICRC role in developing international law).
122. Mine Convention, supra note 43, 8th pmbl. para.
1 23. This author was present throughout the negotiations on the wording of this preambular
paragraph.
124. For example, their active observer status at the UN Human Rights Commission.
75
76
IV
The Development of the Law of Armed
Conflict through the Jurisprudence of the
International Criminal Tribunal for the
Former Yugoslavia
William Fenrick
HE INTERNATIONAL CRIMINAL TRIBUNAL for the former Yugoslavia
(ICTY) was established by Security Council Resolution 827 oi 25 May
1993. ! Article 1 of the ICTY Statute states: "The International Tribunal shall
have the power to prosecute persons responsible for serious violations of
international humanitarian law committed in the territory of the former
Yugoslavia since 1991 in accordance with the provisions of the present
Statute." The provisions that follow in the ICTY Statute give the Tribunal
specific subject-matter jurisdiction over grave breaches of the Geneva
Conventions of 1949 (Article 2), violations of the laws or customs of war
(Article 3), genocide (Article 4), and crimes against humanity (Article 5).
There is little doubt that the decisions and practice of the ICTY and of its
sister tribunal, the International Tribunal for Rwanda (ITR) 2 will have a
significant impact on the development of the law of armed conflict. Judicial
decisions are a subsidiary means for the determination of rules of international
Jurisprudence of the ICT for the Former Yugoslavia
law, not a source of law equivalent to treaties, custom or general principles of
law. Further, there is no rule of precedent in international law as. such. The
decisions and practice of the 1CTY, if they are to have a positive impact on the
development of the law of armed conflict, must persuade external decision
makers such as foreign ministry officials, officials in international organizations,
other judges, military officers, and academic critics of their relevance and
utility. Judicial decisions affect the development of the law of armed conflict
insofar as they address legal lacunae (treaty negotiators can and do accept gaps
in the law — judges cannot), as they add flesh to the bare bones of treaty
provisions or to skeletal legal concepts such as military necessity or
proportionality, and as they identify and give legitimacy to new legal
developments, such as emergent custom.
Applying its own statute, some of the Tribunal's decisions will be statute
dependent and of limited relevance to the general development of the law of
armed conflict. 3 The 1CTY has developed its own approach to procedural and
evidentiary issues, topics essentially unaddressed in the law of armed conflict.
Further, the Tribunal is concerned exclusively with offenses occurring in the
territory o{ the former Yugoslavia. At times, one might regard the various
factual scenarios as having been drafted for an exceptionally difficult Jessup
moot court competition. One is, however, constantly reminded of the bitter
reality of devastation and death that compelled the creation of the Tribunal.
The complexity of the situation in the territory of the former Yugoslavia has
compelled the Tribunal to devote substantial parts of most of its decisions to
determining the nature of the conflict and the content of the body of applicable
law. The treaty-based law of armed conflict has been drafted by and agreed to
by representatives of States. The applicability of this body of law is dependent
upon the classification of a particular conflict. A relatively elaborate body of
law applies during international conflicts; a much more skeletal body of law
applies to internal conflicts.
This "two box" approach to the law is rooted in the reluctance of many
states to accept what they perceive to be interference in their internal affairs.
One might query why States would wish to do worse things to their own
citizens in an internal conflict than to foreigners in an international conflict.
Bearing in mind the complexity of the conflict(s) in the territory of the former
Yugoslavia and the similar complexity of many other contemporary conflicts,
one might also query the continuing utility of the two -box approach. The
analytical contortions of the ICTY judges on the subject both demonstrate the
need for a unified approach and suggest how such an approach might evolve.
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William Fenrick
As of 31 December 1997, the ICTY has confirmed twenty public indictments
naming seventy-four indictees, 4 including three Muslims, fifteen Croats and
fifty-six Serbs. It had ninteen indictees in custody, including three Muslims,
four Serbs and twelve Croats. One trial, that of Dusko Tadic, a Bosnian Serb,
had been completed, and the conviction was being appealed. One indictee,
Drazen Erdemovic, a Bosnian Croat fighting on the Bosnian Serb side,
submitted a guilty plea but then appealed his sentence. Two other trials were
ongoing — that of Timofil Blaskic, a Bosnian Croat, and the joint trial of Hazim
Delic, Esad Landzo, Zdravko Mucic, and Zejnil Delalic, three Bosnian Muslims
and one Bosnian Croat. In addition, two trials, those of Zlatko Aleksovski, a
Bosnian Croat, and Zlavko Dokmanovic, a Croatian Serb, were scheduled to
start in January 1998, with several others to follow. The Office of the
Prosecutor (OTP) of the ICTY has made a conscientious effort to devote
resources to investigate offenses allegedly committed by Croats, Muslims, and
Serbs in an evenhanded fashion. A glance at the list of indictees indicates that
to date: (a) a substantial majority of the indictees are Serbs (usually from
Bosnia), a significant number of the indictees are Croats (also usually from
Bosnia), and a small number of the indictees are Bosnian Muslims; and (b) all
of the Muslim indictees and almost all of the Croat indictees, but very few of
the Serb indictees, are now in custody.
Two comments about the approach of the OTP to investigations and
indictments are necessary. First, the vast number of alleged offenses committed
in the territory of the former Yugoslavia and the limited resources of the OTP
mandate a selective rather than a comprehensive approach. The basic
preference has been to conduct investigations related to persons of particular
importance, to particularly atrocious incidents, or to persons alleged to be
responsible for particularly heinous acts. Inasmuch as investigations are
continuing, the fact that certain persons have not yet been indicted is not
necessarily significant. The availability of evidence or o( an accused has
occasionally affected decisions to conduct investigations. The OTP conducts
its own investigations; it cannot and does not rely on untested information
provided by others. Second, because of the complexity of the conflict and the
fact that the ICTY Statute does not address the issue of included offenses,
indictments have tended to include three types of charges for each alleged
incident: an Article 2 (grave breaches) charge if the prosecution can establish
the conflict is international, an Article 3 (violation of the laws or customs of
war) charge if the conflict is determined to be internal, and an Article 5 (crimes
against humanity) charge if the prosecution can establish that the offense
79
Jurisprudence of the ICT for the Former Yugoslavia
occurred within the context of a widespread or systematic attack against the
civilian population.
To date, the ICTY has contributed to the development of the law of armed
conflict by its decisions related to the application of the grave breach provisions
of the Geneva Conventions of 1949; to the scope of the concept of violations of
the laws or customs of war, particularly in internal conflicts; to the meaning
and scope of crimes against humanity; to the scope of individual criminal
responsibility, including the doctrine of command responsibility; and to
potential defenses, including duress and the doctrine of reprisals. This article
discusses each of these issues in turn. It will conclude with an assessment of
probable future developments.
Application of the Grave Breach Provisions
Article 2 of the ICTY Statute gives the Tribunal the power to prosecute
persons committing or ordering to be committed grave breaches of the 1949
Geneva Conventions. Common Article 2 of the Geneva Conventions
indicates that the Conventions apply in their entirety to all armed conflicts
involving one or more High Contracting Parties on each side; to all cases of
total or partial occupation of the territory of a High Contracting Party by the
forces of another High Contracting Party; and to armed conflicts with Powers
which are not parties to the Conventions if these Powers accept and apply the
provisions thereof. A reasonable argument can be made that the grave breach
provisions are part of customary law and apply to all international conflicts. 5 In
any event, the Geneva Conventions applied throughout the territory of the
former Yugoslavia during the period of conflict as a matter of treaty obligation. 6
It should also be noted that Common Article 3 of the Geneva Conventions,
which applies to non-international conflicts, encourages parties to such
conflicts to enter into special agreements to bring into force all or part of the
other provisions of the Conventions. All of the parties to the conflict have
entered into a web of special agreements pursuant to Common Article 3 or to
other general principles of humanitarian law. 7
Unfortunately, simply stating that the sovereign entities in the territory of
the former Yugoslavia were bound by the Geneva Conventions as a matter of
treaty or custom does not resolve the issue of whether or not the grave breach
provisions were relevant. At various times: (a) the Socialist Federal Republic of
Yugoslavia (SFRY), which was succeeded on 29 April 1992 by the Federal
Republic of Yugoslavia (FRY), was engaged in armed conflict against one or
more o( Slovenia, Croatia, and Bosnia; (b) Croatia was engaged in armed
80
William Fenrick
conflict against the SFRY, the so-called Republic of Serbian Krajina (RSK), the
FRY, and Bosnia; (c) Bosnia was engaged in armed conflict against the SFRY,
the FRY, the Republika Srpska (RS), Croatia, the HVO (the Bosnian-Croat
entity), and the Bosnian Muslim faction controlled by Fikret Abdic; and (d)
Slovenia was engaged in armed conflict with the SFRY. One is tempted to cut
the Gordian knot and simply argue that all the fighting that occurred in the
territory of the former Yugoslavia between 1991 and 1995 was part of one large
international conflict. It is difficult, however, to fit all the fighting into an
international armed conflict framework. As one example, it is difficult to see
how the fighting between the Bosnian government and the Abdic faction can
be regarded as part of an international conflict.
The decision on the Defence Motion for Interbcutory Appeal on Jurisdiction
(hereinafter Tadic Jurisdiction Decision) rendered on 2 October 1995 gave the
Appeals Chamber a first opportunity to address the conflict classification
issue. 8 The offenses with which Tadic was charged occurred in Bosnia in 1992;
they involved a Bosnian Serb perpetrator and Bosnian Croat or Muslim
victims.
At the trial level, the defense argued that the conflict in issue was not
international and that there were no Common Article 3 agreements bringing
the grave breach provisions into effect. The prosecutor argued that for a
variety of reasons the conflict was international and, to the extent the conflict
had internal aspects, the grave breach provisions applied as a result of relevant
Common Article 3 agreements. 10 The United States, in an amicus brief, argued
that the events in the former Yugoslavia should be regarded as parts of a single
international conflict and that violations of Common Article 3 could be
prosecuted under the grave breach provisions of the Geneva Conventions. 11
On appeal, the prosecution also argued that the Security Council had
determined that the conflict in the former Yugoslavia was international and
that this determination should be given full effect. 12
The Appeals Chamber declined to decide on the nature of the conflict,
leaving the issue to be resolved as a matter of mixed fact and law by the Trial
Chamber. It did indicate in its decision that classification was a complex issue
and that the Security Council was also aware of this complexity.
[Wje conclude that the conflicts in the former Yugoslavia have both internal
and international aspects, that the members of the Security Council clearly had
both aspects of the conflicts in mind when they adopted the Statute of the
International Tribunal, and that they intended to empower the International
Tribunal to adjudicate violations of humanitarian law that occurred in either
context. 13
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Jurisprudence of the ICT for the Former Yugoslavia
The Appeals Chamber went on to adopt a relatively conservative approach to
Article 2 of the ICTY Statute, deciding that "in the present state of
development of the law, Article 2 of the Statute only applies to offences
committed within the context of international armed conflicts." 14 The majority
observed further:
Since it cannot be contended that the Bosnian Serbs constitute a State, arguably
the classification just referred to would be based on the implicit assumption that
the Bosnian Serbs are acting not as a rebellious entity but as organs or agents of
another State, The Federal Republic of Yugoslavia (Serbia-Montenegro). As a
consequence, serious infringements of international humanitarian law
committed by the government army of Bosnia-Herzegovina against Bosnian
Serbian civilians in their power would not be regarded as "grave breaches,"
because such civilians, having the nationality of Bosnia-Herzegovina, would not
be regarded as "protected persons" under Article 4, paragraph 1 of Geneva
Convention IV. By contrast, atrocities committed by Bosnian Serbs against
Bosnian civilians in their hands would be regarded as "grave breaches," because
such civilians would be "protected persons" under the Convention, in that the
Bosnian Serbs would be acting as organs or agents of another State, the Federal
Republic of Yugoslavia (Serbia-Montenegro) of which the Bosnians would not
possess the nationality. This would be, of course, an absurd outcome, in that it
would place the Bosnian Serbs at a substantial legal disadvantage vis-ti-vis the
central authorities of Bosnia-Herzegovina. 15
This particular observation, although unnecessary to the decision and of
debatable accuracy, has had a substantial impact on consideration of the issue
by the various trial chambers in subsequent cases.
Although the defense would appear to have conceded the point and the
prosecution argued in support of it, the Chamber was unwilling to consider the
possibility of prosecuting under Article 2 of the Statute for grave breaches
occurring in an internal conflict if appropriate Common Article 3 agreements
had been concluded. It did, however, envisage the possibility of such
prosecution under Article 3 of the Statute. 16 Implicitly, the Chamber decided
that it was not possible to prosecute violations of Common Article 3 under the
grave breach provisions of the Geneva Conventions. The relatively cautious
approach to interpretation of Article 2 of the ICTY Statute taken by the
majority can be contrasted with a much more progressive approach adopted in
a separate opinion by Judge Abi-Saab. He was of the view that the Tribunal
should assume jurisdiction under Article 2 for acts committed in internal
conflicts on the basis of either a new interpretation of the Geneva Conventions
or the establishment of a new customary rule ancillary to the Conventions.
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William Fenrick
As a matter of treaty interpretation — and assuming that the traditional reading
of "grave breaches" has been correct — it can be said that this new normative
substance has led to a new interpretation of the Conventions as a result of the
"subsequent practice" and opinio juris of the States parties: a teleological
interpretation of the Conventions in the light of their object and purpose of the
effect of including internal conflicts within the regime of "grave breaches." The
other possible rendering of the significance of the new normative substance is to
consider it as establishing a new customary rule ancillary to the Conventions,
whereby the regime of "grave breaches" is extended to internal conflicts. But the
first seems to me as the better approach. And under either, Article 2 of the
Statute applies — the same as Article 3, 4 and 5 — in both international and
internal conflicts. 17
The majority judgment in the Tadic Jurisdiction Decision set the standard for
consideration of the conflict classification issue by the Trial Chambers.
The major decisions at the trial chamber level addressing the classification
issue to date have been the Rule 61 proceeding 18 concerning Ivica Rajic 19 and
the Tadic Trial Decision. 10 These decisions have tended to focus on three
related questions: (a) did an international conflict exist when the offenses were
committed? (b) was the accused linked in an appropriate fashion to one side of
the international conflict? and (c) were the victims in the hands of a party to
the conflict or occupying power of which they were not nationals? Most of the
victims are civilians, and Article 4 of the Civilians Convention states in part:
"Persons protected are those who . . . find themselves ... in the hands of a Party
to the conflict or Occupying Power of which they are not nationals." In the
absence of any other relevant international decisions, and for better or worse,
particular heed has been paid by the trial chambers to the Nicaragua decision of
the International Court o( Justice when considering conflict classification. 21
The Nicaragua decision was concerned with State responsibility for violations
of international humanitarian law, not with individual criminal responsibility.
Further, it was concerned with the peculiar facts of the U.S. -supported
"contra" struggle in Nicaragua, and these facts are not necessarily similar to the
facts arising in the territory of the former Yugoslavia.
In the Rajic Rule 61 proceeding, a trial chamber consisting of Judges
McDonald, Sidhwa, and Vohrah reviewed and reconfirmed an indictment
against Ivica Rajic alleging that Bosnian Croat forces under his command
attacked the Bosnian village of Stupni Do on 23 October 1993 and committed
several offenses for which Rajic was responsible, including the grave breach of
wilful killing recognized by Article 2(a) of the ICTY Statute. Bearing in mind
the Tadic Jurisdiction Decision, the trial chamber was of the view that it was
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Jurisprudence of the ICT for the Former Yugoslavia
necessary to establish an undefined quantum of third-State (Croatian)
involvement in the clashes between Bosnian government and Bosnian Croat
(HVO) forces to convert an internal conflict into an international conflict. The
prosecution advanced two theories: (a) the conflict was international because
of the direct military involvement of Croatian forces engaged in combat with
Bosnian forces in Bosnia; and (b) the conflict was international because, in the
hostilities between Bosnia and the Bosnian Croats, the Bosnian Croats were
closely related to and controlled by Croatia and its armed forces. In brief:
13. The Chamber finds that, for purposes of the application of the grave
breaches provisions of Geneva Convention IV, the significant and continuous
military action by the armed forces of Croatia in support of the Bosnian Croats
against the forces of the Bosnian Government on the territory of the latter was
sufficient to convert the domestic conflict between the Bosnian Croats and the
Bosnian Government into an international one. The evidence submitted by the
Prosecutor provides reasonable grounds to believe that between 5,000 to 7,000
members of the Croatian Army as well as some members of the Croatian Armed
Forces ("HOS"), were present in the territory of Bosnia and were involved, both
directly and through their relations with HB and the HVO, in clashes with
Bosnian Government forces in central and southern Bosnia.
The Chamber indicated, however, that the existence of an international
conflict between Bosnia and Croatia during the appropriate period was not
enough, by itself, to establish that grave breaches had been committed by
Bosnian Croats. It was also essential to establish that Croatia exerted such
political and military control over the Bosnian Croats that the latter might be
regarded as an agent or extension of Croatia. The Chamber addressed the issue
as follows:
25. The Trial Chamber deems it necessary to emphasise that the
International Court of Justice in the Nicaragua case considered the issue of
agency in a very different context from the one before the Trial Chamber in this
case. First, the Court's decision in the Nicaragua case was a final determination of
the United States' responsibility for the acts of the contras. In contrast, the
instant proceedings are preliminary in nature and may be revised at trial. Second,
in the Nicaragua case the Court was charged with determining State
responsibility for violations of international humanitarian law. It therefore
rightly focused on the United States' operational control over the contras,
holding that the "general control by the [United States] over a force with a high
degree of dependency on [the United States]" was not sufficient to establish
liability for violations by that force. Nicaragua, 1986 I.C.J. Rep. 11 115. In
contrast, this Chamber is not called upon to determine Croatia's liability for the
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acts of the Bosnian Croats. Rather, it is required to decide whether the Bosnian
Croats can be regarded as agents of Croatia for establishing subject-matter
jurisdiction over discrete acts which are alleged to be violations of the grave
breaches provisions of the Geneva Conventions. Specific operational control is
therefore not critical to the inquiry. Rather, the Trial Chamber focuses on the
general political and military control exercised by Croatia over the Bosnian
Croats.
The Chamber then went on to determine whether the Bosnian civilian
victims were protected persons in that they were in the hands of a party to the
conflicts of which they were not nationals:
37. The Chamber has been presented with considerable evidence that the
Bosnian Croats controlled the territory surrounding the village of Stupni Do. . . .
Because the Trial Chamber has already held that there are reasonable grounds
for believing that Croatia controlled the Bosnian Croats, Croatia may be
regarded as being in control of this area. Thus, although the residents of Stupni
Do were not directly or physically "in the hands of Croatia, they can be treated
as being constructively "in the hands of Croatia, a country of which they were
not nationals. The Trial Chamber therefore finds that the civilian residents of
the village of Stupni Do were — for the purposes of the grave breaches provisions
of Geneva Convention IV — protected persons vis-a-vis the Bosnian Croats
because the latter were controlled by Croatia.
The Tadic Trial Decision has the most elaborate discussion o( the conflict
classification issue to date. The Trial Chamber in this case consisted of Judges
McDonald, Vohrah, and Stephen. As indicated earlier, Tadic is a Bosnian Serb
who committed offences against Bosnian Muslims or Croats in Bosnia in the
summer of 1992. In brief, the majority, consisting of Judges Vohrah and
Stephen, held that the Geneva Conventions did apply in Bosnia throughout
the period covered by the indictment, because of an ongoing international
armed conflict between Bosnia and the SFRY/FRY. 22 The majority then made
two unsubstantiated assertions in a single paragraph: that (a) the armed forces
of the Republika Srpska (the VRS) and the RS as a whole were, at least from 19
May 1992 onwards, legal entities distinct from the FRY armed forces (VJ) and
from the FRY, and (b) members of the VRS were nationals of Bosnia. 23 May 19,
1992 was significant as the date o( the dissolution of the old SFRY national
army (the JNA) into two new components, the VRS and the VJ, and the formal
withdrawal of the VJ from Bosnia. This was in spite of the majority observation
that:
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Jurisprudence of the ICT for the Former Yugoslavia
115. The formal withdrawal of the JNA from Bosnia and Herzegovina took
place on 19 May 1992; the VRS was in effect a product of the dissolution of the
old JNA and the withdrawal of its non- Bosnian elements into Serbia. However,
most, if not all, of the commanding officers of units of the old JNA who found
themselves stationed with their units in Bosnia and Herzegovina on 18 May
1992, nearly all Serbs, remained in command of those units throughout 1992 and
1993 and did not return to Serbia. This was so whether or not they were in fact in
origin Bosnian Serbs. This applied also to most other officers and
non-commissioned officers. Although then formally members of the VRS rather
than of the former JNA, they continued to receive their salaries from the
Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)
and the pensions of those who in due course retired were paid by that
Government. At a briefing of officers concerned with logistics, General Dorde
Dukic, then of the VRS but who had, until 18 May 1992, been Chief of Staff of
the Technical Administration of the JNA in Belgrade, announced that all the
active duty members of the VRS would continue to be paid by the federal
government in Belgrade, which would continue to finance the VRS, as it had the
JNA, with the same numerical strengths of officers as were registered on 19 May
1992. The weapons and equipment with which the new VRS was armed were
those that the units had had when part of the JNA. After 18 May 1992 supplies
for the armed forces in Bosnia and Herzegovina continued to come from Serbia.
Relying on its unanalyzed conclusions that the VRS and RS were legally
distinct from the VJ and the FRY and that members o{ the VRS were Bosnian
nationals, the majority went on to review the Nicaragua case in order to
determine the proper rule for applying general principles of international law
relating to State responsibility for de facto organs or agents to the specific
circumstances of rebel forces fighting a seemingly internal conflict against the
recognized government of a State, but dependent on the support oi a foreign
power in the continuation of that conflict. The majority noted that the ICJ had
a set a particularly high standard for determining whether or not the United
States was responsible for the activities of the contras. The central portion of
the ICJ judgment on this point was quoted:
585. . . . United States participation, even if preponderant or decisive, in the
financing, organizing, training, supplying and equipping of the contras, the
selection of its military or paramilitary targets and the planning of the whole of its
operation, is still insufficient in itself, on the basis of the evidence in the
possession of the Court, for the purposes of attributing to the United States the
acts committed by the contras in the course of their military or paramilitary
operations in Nicaragua. . . . For this conduct to give rise to legal responsibility of the
United States, it would in principle have to be proved that that State had effective
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control of the military or paramilitary operations in the course of which the alleged
violations were committed. 24
The majority identified two substantial differences between the facts of the
Nicaragua case and the facts in the Tadic case: first, the VRS was an occupying
force, not a raiding army, 25 and second, the FRY clearly did control Bosnian
Serb military activities until approximately 19 May 92. 26
588. Consequently, the Trial Chamber must consider the essence of the test
of the relationship between a de facto organ or agent, as a rebel force, and its
controlling entity or principal, as a foreign Power, namely the more general
question whether, even if there had been a relationship of great dependency on
the one side, there was such a relationship of control on the other that, on the
facts of the instant case, the acts of the VRS, including its occupation of opstina
Prijedor, can be imputed to the Government of the Federal Republic of
Yugoslavia (Serbia and Montenegro). . . .
In doing so it is neither necessary nor sufficient merely to show that the VRS
was dependent, even completely dependent, on the V] and the Federal Republic
of Yugoslavia (Serbia and Montenegro). It must also be shown that the V] and
the Federal Republic of Yugoslavia (Serbia and Montenegro) exercised the
potential for control inherent in that relationship of dependency or that the VRS
had otherwise placed itself under the control of the Government of the Federal
Republic of Yugoslavia (Serbia and Montenegro).
It was the position of the majority that the law applicable to State responsibility
was also relevant to determining which body o{ law applied for individual
criminal responsibility. In order to establish State responsibility, it was
necessary to establish that the FRY exercised effective control over the VRS or
the RS. Logistical support, personnel support, and common aims were
insufficient.
598. This leads the Trial Chamber to a consideration of two relationships of
especial importance to the question which this Trial Chamber must determine.
The first is the relationship of General Mladic, and hence the VRS Main Staff, to
Belgrade. . . . The only evidence which the Prosecution was able to adduce as to
the command and control relationship between the VRS Main Staff and
Belgrade was that provided by Colonel Selak. He said, speaking of a Prosecution
exhibit displaying a link, between the Main Staffs of the VRS and V] after 18 May
1992 (Prosecution Exhibit 174):
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Jurisprudence of the ICT for the Former Yugoslavia
[T]here was no real chain of command because officially the
Commander of the army of the Republika Srpska was Colonel General
Ratko Mladic 1 . So this [link] is just pro forma because other relations
between the Chief of Staff, the main staff of the Yugoslav Army and the
main staff of the army of the Republika Srpska were not really existing but,
in fact, they did co-ordinate.
Coordination is not the same as command and control. The only other evidence
submitted by the Prosecution was that, in addition to routing all high-level VRS
communications through secure links in Belgrade, a communications link for
everyday use was established and maintained between VRS Main Staff
Headquarters and the V] Main Staff in Belgrade. No further evidence was
offered by the Prosecution on the nature of this relationship.
599. What then of the second relationship, namely that between the SDS
(and hence the Republika Srpska) and the Government of the Federal Republic of
Yugoslavia (Serbia and Montenegro) ? Unlike the situation confronted by the
Court in the Nicaragua case, where the United States had largely selected and
installed the political leaders of the contras, in the Republika Srpska political
leaders were popularly elected by the Bosnian Serb people of the Republic of
Bosnia and Herzegovina. Indeed, as previously noted, the independence of the
Republika Srpska itself was declared at a vote of the Assembly of the Serbian
People of Bosnia and Herzegovina on 9 January 1992. The Assembly and its
leaders played a role in the overall conduct of the war both in the Republic of
Bosnia and Herzegovina and beyond, in addition to the supply of paramilitary
forces to supplement the fighting strength of the new VRS units, which forces
took part in the military operations in opStina Prijedor. . . .
605. Thus, while it can be said that the Federal Republic of Yugoslavia
(Serbia and Montenegro), through the dependence of the VRS on the supply of
materiel by the V], had the capability to exercise great influence and perhaps
even control over the VRS, there is no evidence on which this Trial Chamber
can conclude that the Federal Republic of Yugoslavia (Serbia and Montenegro)
and the V] ever directed or, for that matter, ever felt the need to attempt to
direct, the actual military operations of the VRS, or to influence those operations
beyond that which would have flowed naturally from the coordination of military
objectives and activities by the VRS and VJ at the highest levels. In sum, while,
as in the Nicaragua case, the evidence available to this Trial Chamber clearly
shows that the "various forms of assistance provided" to the armed forces of the
Republika Srpska by the Government of the Federal Republic of Yugoslavia
(Serbia and Montenegro) was "crucial to the pursuit of their activities" and, as
with the early years of the contras' activities, those forces were almost completely
dependent on the supplies of the V] to carry out offensive operations, evidence
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that the Federal Republic of Yugoslavia (Serbia and Montenegro) through the
VJ "made use of the potential for control inherent in that dependence," or was
otherwise given effective control over those forces and which it exercised, is
similarly insufficient.
On the basis of its assessment of the law as contained in the Nicaragua
decision (the effective control test) and its assessment of the facts, the majority
found that the VRS and the RS could not be regarded as de facto organs or
agents of the FRY. As a consequence, the civilian victims in the Tadic case
could not be regarded as protected persons within the meaning of the Geneva
Civilians Convention, because they were not in the hands of a party, of which
they were not nationals, to an armed conflict. The Bosnian victims were in the
hands of their Bosnian (Serb) fellow nationals. As a consequence, the grave
breach provisions of the Geneva Conventions recognized in Article 2 of the
1CTY Statute did not apply. 27
Judge McDonald, continuing to adopt the approach she had formulated in
the Rajic Rule 61 Proceeding, filed a robust dissent in which she argued that the
majority had misinterpreted the Nicaragua decision and in any event had
misapplied its mistaken interpretation to the facts. In her view, Nicaragua
established two distinct tests for attributatility: effective control and agency.
She summarized her analysis as follows:
25. The separate opinion of Judge Ago [in the Nicaragua case], also cited by
the majority, explains with lucidity the concept that a State can be found legally
responsible even where there is no finding of agency. He states:
[T]he negative answer returned by the Court to the Applicant's suggestion
that the misdeeds committed by some members of the contra forces should
be considered as acts imputable to the United States of America is likewise
in conformity with the provisions of the International Law Commission's
draft. It would indeed be inconsistent with the principles governing the
question to regard members of the contra forces as persons or groups acting
in the name and on behalf of the United States of America. Only in cases
where certain members of those forces happened to have been specifically
charged by United States authorities to commit a particular act, or to carry
out a particular task of some kind on behalf of the United States, would it
be possible so to regard them. Only in such instances does international
law recognize, as a rare exception to the rule, that the conduct of persons or
groups which are neither agents nor organs of a State, nor members of its
apparatus even in the broadest acceptation of that term, may be held to be acts of
that State. The Judgment, accordingly, takes a correct view when, referring
in particular to the atrocities, acts of violence or terrorism and other
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inhuman actions that Nicaragua alleges to have been committed by the
contras against the persons and property of civilian populations, it holds
that the perpetrators of these misdeeds may not be considered as having
been specifically charged by United States authorities to commit them
unless, in certain concrete cases, unchallengeable proof to the contrary has
been supplied. 28
Therefore it appears that there are two bases on which the acts of the VRS could
be attributed to the Federal Republic of Yugoslavia (Serbia and Montenegro) :
where the VRS acted as an agent of the Federal Republic of Yugoslavia (Serbia
and Montenegro), which could be established by a finding of dependency on the
one side and control on the other; or where the VRS was specifically charged by
the Federal Republic of Yugoslavia (Serbia and Montenegro) to carry out a
particular act on behalf of the Federal Republic of Yugoslavia (Serbia and
Montenegro) thereby making the act itself attributable to the Federal Republic
of Yugoslavia (Serbia and Montenegro). In Nicaragua, the court required a
showing of effective control for this latter determination.
If "effective control" is the proper test, Judge McDonald, interpreting the
same evidence and accepting the same facts, concluded that the FRY did
effectively control the VRS, that the creation of the VRS was a legal fiction, and
that the attack which provided the opportunity for Tadic to commit offenses
had to have been planned before the VRS was created on 19 May 1992.
7. The evidence proves that the creation of the VRS was a legal fiction. The
only changes made after the 15 May 1992 Security Council resolution were the
transfer of troops, the establishment of a Main Staff of the VRS, a change in the
name of the military organisation and individual units, and a change in the
insignia. There remained the same weapons, the same equipment, the same
officers, the same commanders, largely the same troops, the same logistics
centres, the same suppliers, the same infrastructure, the same source of
payments, the same goals and mission, the same tactics, and the same operations.
Importantly, the objective remained the same: to create an ethnically pure Serb
State by uniting Serbs in Bosnia and Herzegovina and extending that State from
the Federal Republic of Yugoslavia (Serbia and Montenegro) to the Croatian
Krajina along the important logistics and supply line that went through opStina
Prijedor, thereby necessitating the expulsion of the non-Serb population of the
opStina.
8. Although there is little evidence that the VRS was formally under the
command of Belgrade after 19 May 1992, the VRS clearly continued to operate
as an integrated and instrumental part of the Serbian war effort. This finding is
supported by evidence that every VRS unit had been a unit in the JNA, the
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command and staffs remaining virtually the same after the re-designation. The
VRS Main Staff, the members of which had all been generals in the JNA and
many of whom were appointed to their positions by the JNA General Staff,
maintained direct communications with the VJ General Staff via a
communications link from Belgrade. . . . The ties between the military in Bosnia
and Herzegovina and the SDS political party, which advocated a Greater Serbia,
similarly remained unchanged after the re-designation.
9. In addition, the evidence establishes that the VRS, in continuing the JNA
operation to take over opstina Prijedor, executed the military operation for the
benefit of the Federal of Yugoslavia (Serbia and Montenegro) .
The prosecution has appealed the Trial Chamber decision in Tadic, arguing:
• The Trial Chamber erred in relying upon the Nicaragua case and the
"effective control" test to determine the applicability of the grave breach
provisions of the Geneva Conventions.
• The provisions of the Geneva Conventions and the relevant principles
and authorities of international humanitarian law only require that the
perpetrator be demonstrably linked to a party to an international armed
conflict of which the victim is not a national, for the grave breach provisions to
be rendered applicable.
• Assuming the Nicaragua case is to be relied upon, the decision in the
Nicaragua case also applied an "agency" test, which is a more appropriate
standard for determining the applicability of the grave breach provisions.
• In any event, assuming that the "effective control" test mentioned in the
Nicaragua case is applicable to determining the applicability of grave breach
provisions, the Trial Chamber erred in finding that this test is not satisfied on
the facts of this case, which also satisfy the "agency" test outlined in the
Nicaragua case. 29
The main argument advanced by the prosecution is that the Nicaragua case
is not relevant to the determination of the applicablity of the grave breach
provisions or to determining individual criminal responsibility. It is essential to
establish the existence of an international armed conflict in Bosnia at the time
when Tadic is alleged to have committed his crimes. It is then necessary to
establish that the perpetrator (Tadic) has a demonstrable link to one party to
the international armed conflict while the victim is linked to a neutral or to a
party on the other side. Further, as an aside, although Article 4 of the Civilians
Convention defines "protected persons" as persons in the hands of a party of
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which they are not nationals, determination of nationality is not a simple
process when States are in the process of decomposition. A simplistic
assumption that persons must be nationals of a new State simply because they
live in its territory at the moment of creation is inappropriate. 30
Violations of the Laws or Customs of War
Article 3 of the ICTY Statute gives the Tribunal power to prosecute persons
violating the laws or customs of war. Certain violations are enumerated in the
article, but the list is open-ended. In the Tadic Jurisdiction Decision, the Appeals
Chamber considered the meaning of the expression "violation of the laws or
customs of war" in the ICTY Statute. Its assessment may have an impact
outside the Tribunal. The defense argued that Article 3 applied exclusively to
international conflicts. 31 The prosecution argued that the expression "laws or
customs of war" was at one time viewed as a term of art referring to laws or
customs applicable exclusively to declared wars. As declared wars became
uncommon, the expression was viewed as a term of art applicable to all
international armed conflicts. In the opinion of the prosecution, with the
development of treaty law specifically intended to apply to non-international
armed conflicts, and of customary law applicable to non-international armed
conflicts, the expression "laws or customs of war" had become a term of art
which applies to all armed conflicts, although it does not bear the same content
in international and non-international conflicts. The prosecution also argued
that Article 3 enabled the Tribunal to prosecute all violations of applicable
international humanitarian law treaties. Specifically, with reference to the
Tadic case, the prosecution argued that the ICTY had the power to prosecute
for violations of the rules in Common Article 3 oi the Geneva Conventions
committed in international or internal conflicts. 32
Although the Appeals Chamber utilized a relatively conservative approach
with respect to Article 2, it adopted an extremely progressive and creative
approach concerning Article 3 of the Statute. The Chamber adopted the
approach favored by the prosecution and went on at some length to elaborate
upon its implications and upon the content oi the relevant customary law,
particularly that part of customary law which, in its view, applies to all armed
conflicts regardless of classification. It is reasonable to assume that the
Chamber focused its analysis on this part of customary law, both because it
shared the view it apparently assigned to the Security Council that the conflicts
in the territory of the former Yugoslavia are many and of mixed character, and
because the content of this part of customary law had not been reviewed by a
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tribunal in the past. In paragraph 94 of the Jurisdiction Decision, the Appeals
Chamber set forth the requirements for an offense to be subject to prosecution
under Article 3 of the Statute:
• The violation must constitute an infringement of a rule of international
humanitarian law.
• The rule must be customary in nature, or if it belongs to treaty law, the
required conditions must be met.
• The violations must be "serious," that is to say, it must constitute a breach
of a rule protecting important values, and the breach must involve grave
consequences for the victim. Thus, for instance, the fact of a combatant simply
appropriating a loaf of bread in an occupied village would not amount to a
"serious violation of international humanitarian law," although it may be
regarded as falling afoul of the basic principle laid down in Article 46,
paragraph 1, of the Hague Regulations (and the corresponding rule of
customary international law) whereby "private property must be respected" by
any army occupying an enemy territory.
• The violation oi the rule must entail, under customary or conventional
law, the individual criminal responsibility of the person breaching the rule.
It follows that it does not matter whether the "serious violation" has occurred
within the context of an international or an internal armed conflict, as long as
the requirements set out above are met.
The Chamber regarded Article 3 of the Statute as a general or residual
clause covering all violations of humanitarian law not falling within Articles 2,
4, or 5. In so doing, it did not avoid or evade the classification issue.
Classification remains relevant (a) when the sole source of a rule is a treaty
which applies to a specific type of conflict (Protocol I, the Geneva Conventions
and the Hague Conventions apply to international conflicts. Protocol II applies
to internal conflicts.), or (b), when the customary law applies to a specific type
of conflict.
Concerning treaty provisions, other than the grave breach provisions of the
Geneva Conventions, the Chamber indicated it has jurisdiction to punish
under Section 3 of the Statute:
143. Before both the Trial Chamber and the Appeals Chamber, Defence and
Prosecution have argued the application of certain agreements entered into by
the conflicting parties. It is therefore fitting for this Chamber to pronounce on
this. It should be emphasised again that the only reason behind the stated
purpose of the drafters that the International Tribunal should apply customary
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international law was to avoid violating the principle of nullum crimen sine lege in
the event that a party to the conflict did not adhere to a specific treaty. (Report
of the Secretary- General, at para. 34) . It follows that the International Tribunal
is authorised to apply, in addition to customary international law, any treaty
which: (i) was unquestionably binding on the parties at the time of the alleged
offence; and (ii) was not in conflict with or derogated from peremptory norms of
international law, as are most customary rules of international humanitarian law.
Although the Chamber has adopted a very progressive approach concerning
the content of customary law applicable to internal conflict, it did not state
that customary law is identical for all conflicts. In particular, it held:
126. The emergence of the aforementioned general rules on internal
conflicts does not imply that internal strife is regulated by general international
law in all its aspects. Two particular limitations may be noted: (i) only a number
of rules and principles governing international armed conflicts have gradually
been extended to apply to internal conflicts; and (ii) this extension has not taken
place in the form of a full and mechanical transplant of those rules to internal
conflicts; rather the general essence of those rules and not the detailed
regulation they may contain has become applicable to internal conflicts.
The decision therefore, envisages charges under Article 3 of the Statute: (a)
where an armed conflict must be established but classification is irrelevant
because the basis for the charge is a rule of customary law which applies to all
armed conflicts; (b) where an armed conflict must be established and classified
as international because the basis for the charge is a rule of treaty or customary
law which applies exclusively to international conflicts; or (c) where an armed
conflict must be established and classified as internal because the basis for the
charge is a rule of treaty or customary law which applies exclusively to internal
conflicts.
As a general statement, evidenced by practice before the International
Court of Justice, proof that a rule is a part of customary law is an extremely
difficult task. 33 The Appeals Chamber has, however, provided a relatively
elaborate discussion of the current content of customary law. In particular, it
has indicated that the following rules apply to all conflicts regardless of
classification:
• The rules in Common Article 3 (para 102);
• The principles in UN General Assembly Resolution 2444 (paras. 110 and
112); and
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• The principles in UN General Assembly Resolution 2675 (paras. Ill and
112).
In addition to elaborating upon the content of customary law applicable to
all conflicts and also to internal conflicts, the Chamber countered a defense
assertion that the law applicable to internal armed conflicts did not entail
individual criminal responsibility. Indeed, neither Additional Protocol II nor
Common Article 3 contain provisions referring to criminal liability, although
each of the Geneva Conventions does contain a relevant provision that states
in part: "Each High Contracting Party shall take measures necessary for the
suppression of all acts contrary to the provisions o( the present Convention
other than the grave breaches." 34 The Tribunal addressed the issue as follows:
128. .. . Faced with similar claims with respect to the various agreements and
conventions that formed the basis of its jurisdiction, the International Military
Tribunal at Nuremberg concluded that a finding of individual criminal
responsibility is not barred by the absence of treaty provisions on punishment of
breaches. (See THE TRIAL OF MAJOR WAR CRIMINALS: PROCEEDINGS OF THE
INTERNATIONAL MILITARY TRIBUNAL SITTING AT NUREMBERG GERMANY,
Part 22, at 445, 467 (1950)). The Nuremberg Tribunal considered a number of
factors relevant to its conclusion that the authors of particular prohibitions incur
individual responsibility: the clear and unequivocal recognition of the rules of
warfare in international law and State practice indicating an intention to
criminalize the prohibition, including statements by governments officials and
international organizations, as well as punishment of violations by national
courts and military tribunals (id., at 445-47, 467). Where these conditions are
met, individuals must be held criminally responsible, because, as the Nuremberg
Tribunal concluded:
"(c]rimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can
the provisions of international law be enforced." (Id., at 447).
129. Applying the foregoing criteria to the violations at issue here, we have
no doubt that they entail individual criminal responsibility, regardless of whether
they are committed in internal or international armed conflicts. Principles and
rules of humanitarian law reflect "elementary considerations of humanity"
widely recognized as the mandatory minimum for conduct in armed conflicts of
any kind. No one can doubt the gravity of the acts at issue, nor the interest of the
international community in their prohibition.
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130. Furthermore, many elements of international practice show that States
intend to criminalize serious breaches of customary rules and principles on
internal conflict.
The Chamber's interpretation of the scope of customary law embraced by
the expression "violations of the laws or customs of war" is indeed quite
progressive. Reputable authorities have been of the view that no customary law
exists for internal conflict 35 and that there is no basis for an assignment of
criminal responsibility for acts occurring in internal conflicts except by a
domestic court in the State where the conflict occurred. 36 Further, the basis for
the conclusion that a body of customary law applicable to all conflicts exists
might also be subjected to criticism. Extracts from the oral argument of the
United States in the Nuclear Weapons Advisory Opinion case highlight the
distinction between the approach of the Tribunal and the more traditional
approach:
It is a fundamental principle of international law that restrictions on
States — particularly those affecting the conduct of armed conflict — cannot be
presumed; they must, rather, be found in conventional law specifically accepted
by States, or in customary law generally accepted as such by the community of
nations. The Court made this vital point in the case of Nicaragua v. United States
(l.CJ. Reports 1986, p.135), recalling that
in international law there are no rules, other than such rules as may be
accepted by the State concerned, by treaty or otherwise, whereby the level
of armaments of a sovereign State can be limited.
An even higher standard applies in establishing the existence of
peremptory norms of international law, which must be accepted and
recognized by the international community as norms from which no
derogation is permitted. . . . J7
As the Court has clearly established, customary international law is created by a
general and consistent practice of States, followed out of a sense of legal
obligation. The Court has noted in the North Sea Continental Shelf case that the
incorporation of a norm into customary international law requires "extensive
and virtually uniform" State practice. 38
As a matter of law, the General Assembly's resolutions could only be
declarative of principles of customary international law to the extent that such
principles have in fact, been recognized already by the international
1Q
community.
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When contrasted with the rigorous approach adopted by the International
Court of Justice and other tribunals towards proof of customary law in other
areas of international law, the substantiation provided by the Appeals
Chamber for its conclusions concerning customary law is limited. The support
for the conclusion that a certain common body of customary law applied to
both international and internal conflicts consists primarily of two UN General
Assembly Resolutions, 2444 oi 19 December 1968 and 2675 of 9 December
1970, and a quotation from the Nicaragua decision. 40 Support for the
conclusion that there is a significant body of customary law applicable to
internal conflicts is more firmly based, consisting of examples from the Spanish
Civil War of 1936-1939 (para. 100), the Chinese civil war that ended in 1949
(para. 102), the Nicaragua contra struggles of the 1980s (para. 103), the 1967
conflict in Yemen (para. 105), the Congo civil war of the 1960s (para. 106), the
1980s conflict in El Salvador (para. 107), and various declarations by States
and international organizations urging States involved in internal conflicts to
comply with certain minimum standards.
It must, however, be conceded that tribunals which have addressed the issue
of the customary law content of international humanitarian law have tended to
avoid detailed proofs. The International Military Tribunal at Nuremberg, 41 the
tribunal which decided the High Command Case, 42 and even the IC] itself in the
Nicaragua Case 43 have all tended to reach essentially unsubstantiated
conclusions on these matters. In the words of Theodor Meron:
Only a few international judicial decisions discuss the customary law nature of
international humanitarian law instruments. These decisions nevertheless point
to certain trends in this area, including a tendency to ignore, for the most part,
the availability of evidence of state practice (scant as it may have been) and to
assume that noble humanitarian principles that deserve recognition as the
positive law of the international community have in fact been recognized as such
by states. The "ought" merges with the "is," the lex ferenda with the lex lata. The
teleological desire to solidify the humanizing content of the humanitarian norms
clearly affects the judicial attitudes underlying the "legislative" character of the
judicial process. Given the scarcity of actual practice, it may well be that, in
reality, tribunals have been guided, and are likely to continue to be guided, by the
degree of offensiveness of certain acts to human dignity; the more heinous the
act, the more the tribunal will assume that it violates not only a moral principle of
humanity but also a positive norm of customary law. 44
Indeed, the Appeals Chamber, in the Jurisdiction Decision, has provided the
most sophisticated and rigorous judicial determination to date of the
customary law aspects of international humanitarian law. One might hope,
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however, that the ICTY will return to some of these issues in future to
strengthen their legal foundations.
Crimes against Humanity
In contrast to both the relatively conservative approach taken concerning
Article 2 of the Statute and the somewhat progressive approach taken
concerning Article 3, in the Tadic Jurisdiction Decision the Appeals Chamber
adopted a relatively middle-of-the-road approach concerning the
interpretation of Article 5 with respect to crimes against humanity. The
approach taken in the Charter of the International Military Tribunal at
Nuremberg 45 and in the judgment of the International Military Tribunal
(IMT) 46 was to link crimes against humanity to other offenses within the
jurisdiction of the IMT and, in particular, to link crimes against humanity to the
existence of an international armed conflict. On the other hand, Control
Council Law No. 10, 47 which provided the basis for several subsequent trials at
Nuremberg by American tribunals, defined crimes against humanity but did
not restrict the jurisdiction of tribunals empowered under it to offenses
committed "in execution of or in connection with any crime within the
jurisdiction of the Tribunal." 48 As a result, the tribunals in some of the
subsequent proceedings regarded crimes against humanity as offenses which
need not have a link with international armed conflict. 49
Article 5 of the ICTY Statute gave the Tribunal the power to prosecute
persons committing crimes against humanity "when committed in armed
conflict." The defense argued that insofar as Article 5 purported to regulate
conduct in internal conflict it offended against the nullum crimen principle,
because in customary law crimes against humanity require a nexus with
international armed conflict. 50 The prosecution responded that under existing
customary law, crimes against humanity did not require a nexus with any form
of armed conflict and that as a result, since Article 5 adopted an approach that
was more restrictive than customary law, it did not breach the nullum crimen
principle. 51 The Tribunal decided (para. 141), "It is by now a settled rule of
customary international law that crimes against humanity do not require a
connection to international armed conflict." It went on to indicate the
prosecution argument may well have been correct, and in any event Article 5
was in compliance with the nullum crimen principle.
The Trial Chamber in the Tadic Trial Decision devoted substantial space to
consideration of crimes against humanity. Article 5 of the ICTY Statute gives
the Tribunal the power to prosecute persons responsible for crimes against
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humanity "when committed in armed conflict" and "directed against any
civilian population." The Trial Chamber accepted the test set out by the
Appeals Chamber in the Tadic ]urisdiction Decision for the existence of an
armed conflict: " [A] n armed conflict exists whenever there is a resort to armed
force between States or protracted armed violence between governmental
authorities and organized armed groups or between such groups within a
State." Finding the existence of an armed conflict (para. 628), it then
considered the nexus between the act or omission and the armed conflict. The
prosecution position — that the nexus was that the act must occur during the
course of an armed conflict — was accepted, but the Chamber added two
caveats: the act must be linked geographically as well as temporally with the
armed conflict, and the act must not be unrelated to the armed conflict, i.e., it
must not be done for purely personal motives of the perpetrator (paras. 633,
634). Concerning "directed against any civilian population," the Chamber held
that "any" made it clear that crimes against humanity could also be committed
against stateless persons or civilians of the same nationality as the perpetrator
(para. 635). Further, "civilian" would clearly exclude combatants, but it would
otherwise be given a very broad definition, including, for example, hospital
patients and resistance fighters who had laid down their arms (paras. 639-43).
The requirement that crimes against humanity be directed against a civilian
"population" was construed as requiring not that the entire population of a
State or territory be victimized, but that such crimes be of a collective nature,
not single or isolated acts (para. 644). The prosecution argued that the term
"population" in Article 5 implied that the accused must participate in a
widespread or systematic attack against a relatively large victim group. The
defense position was that violations must be both widespread and systematic.
The Chamber accepted the prosecution approach:
648. It is therefore the desire to exclude isolated or random acts from the
notion of crimes against humanity that led to the inclusion of the requirement
that the acts must be directed against a civilian "population," and either a finding
of widespreadness, which refers to the number of victims, or systematicity,
indicating that a pattern or methodical plan is evident, fulfils this requirement.
The Chamber went on to consider whether or not single acts could
constitute crimes against humanity:
649. A related issue is whether a single act by a perpetrator can constitute a
crime against humanity. A tangential issue, not at issue before this Trial
Chamber, is whether a single act in and of itself can constitute a crime against
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humanity. This issue has been the subject of intense debate, with the
jurisprudence immediately following the Second World War being mixed. The
American tribunals generally supported the proposition that a massive nature
was required, while the tribunals in the British Zone came to the opposite
conclusion, finding that the mass element was not essential to the definition, in
respect of either the number of acts or the number of victims and that "what
counted was not the mass aspect, but the link between the act and the cruel and
barbarous political system, specifically, the Nazi regime." Clearly, a single act by a
perpetrator taken within the context of a widespread or systematic attack against
a civilian population entails individual criminal responsibility and an individual
perpetrator need not commit numerous offences to be held liable. Although it is
correct that isolated, random acts should not be included in the definition of
crimes against humanity, that is the purpose of requiring that the acts be directed
against a civilian population and thus "[e]ven an isolated act can constitute a
crime against humanity if it is the product of a political system based on terror or
persecution."
Although the Statute did not address the issue, the Chamber turned next to
the issue of whether a discriminatory intent was a requirement for all crimes
against humanity and not only for persecution under Article 5(h). No such
requirement was contained in the Nuremberg Charter, Control Council Law
No. 10, or the Tokyo Charter. Nevertheless, the Chamber imposed such a
requirement in its interpretation of the Statute.
652. Additionally this requirement is not contained in the Article on crimes
against humanity in the I.L.C. Draft Code nor does the Defence challenge its
exclusion in the Prosecution's definition of the offence. Significantly,
discriminatory intent as an additional requirement for all crimes against
humanity was not included in the Statute of this International Tribunal as it was
in the Statute for the International Tribunal for Rwanda, the latter of which has,
on this point, recently been criticised. Nevertheless, because the requirement of
discriminatory intent on national, political, ethnic, racial or religious grounds for
all crimes against humanity was included in the Report of the Secretary -General,
and since several Security Council members stated that they interpreted Article
5 as referring to acts taken on a discriminatory basis, the Trial Chamber adopts
the requirement of discriminatory intent for all crimes against humanity under
Article 5.
The Chamber then addressed what has been referred to as the "policy
element." Crimes against humanity involve a deliberate policy made by an
entity to target a civilian population.
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653. . . . Traditionally this requirement was understood to mean that there must
be some form of policy to commit these acts. As explained by the Netherlands
Hoge Raad in Public Prosecutor v. Menten:
The concept of "crimes against humanity" also requires — although this is
not expressed in so many words in the above definition [Article 6(c) of the
Niirnberg Charter) — that the crimes in question form a part of a system
based on terror or constitute a link in a consciously pursued policy directed
against particular groups of people.
Importantly, however, such a policy need not be formalized and can be deduced
from the way in which the acts occur. Notably, if the acts occur on a widespread
or systematic basis that demonstrates a policy to commit those acts, whether
formalized or not.
Further, it decided that the policy could be determined by non-State actors as
well as by States.
654. An additional issue concerns the nature of the entity behind the policy.
The traditional conception was, in fact, not only that a policy must be present
but that the policy must be that of a State, as was the case in Nazi Germany. The
prevailing opinion was, as explained by one commentator, that crimes against
humanity, as crimes of a collective nature, require a State policy "because their
commission requires the use of the state's institutions, personnel and resources in
order to commit, or refrain from preventing the commission of, the specified
crimes described in Article 6(c) [of the Niirnberg Charter)." While this may
have been the case during the Second World War, and thus the jurisprudence
followed by courts adjudicating charges of crimes against humanity based on
events alleged to have occurred during this period, this is no longer the case. As
the first international tribunal to consider charges of crimes against humanity
alleged to have occurred after the Second World War, the International
Tribunal is not bound by past doctrine but must apply customary international
law as it stood at the time o( the offences. In this regard the law in relation to
crimes against humanity has developed to take into account forces which,
although not those of the legitimate government, have de facto control over, or
are able to move freely within, defined territory. The Prosecution in its pre-trial
brief argues that under international law crimes against humanity can be
committed on behalf of entities exercising de facto control over a particular
territory but without international recognition or formal status of a de jure State,
or by a terrorist group or organization. The Defence does not challenge this
assertion, which conforms with recent statements regarding crimes against
humanity.
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Finally, the Chamber considered the intent necessary for crimes against
humanity and concluded:
659. Thus if the perpetrator has knowledge, either actual or constructive,
that these acts were occurring on a widespread or systematic basis and does not
commit his act for purely personal motives completely unrelated to the attack on
the civilian population, that is sufficient to hold him liable for crimes against
humanity. Therefore the perpetrator must know that there is an attack on the
civilian population, know that his act fits in with the attack and the act must not
be taken for purely personal reasons unrelated to the armed conflict.
The prosecution is at present appealing two of the findings of the Trial
Chamber on the law applicable to the 1CTY related to crimes against humanity.
With reference to the finding that crimes against humanity cannot be
committed for purely personal motives, the prosecution argues that the motive
for committing crimes against humanity is irrelevant. 52 With reference to the
finding that all crimes against humanity require a discriminatory intent, the
prosecution argues that the 1CTY Statute includes no such requirement, that
customary law does not require a discriminatory intent for all crimes against
humanity, and that Article 5 of the ICTY Statute is intended to reflect
customary law. 53
Individual Criminal Responsibility
Article 7 of the ICTY Statute addresses individual criminal responsibility.
Article 7(1) o( the Statute provides, in part: "A person who planned,
instigated, ordered, committed or otherwise aided and abetted in the planning,
preparation or execution of a crime . . . shall be individually responsible for the
crime."
Forms of Criminal Participation. The Tadic Trial Decision provides the first
extended judicial consideration of this provision. It states:
692. In sum, the accused will be found criminally culpable for any conduct
where it is determined that he knowingly participated in the commission of an
offence that violates international humanitarian law and his participation
directly and substantially affected the commission of that offence through
supporting the actual commission before, during, or after the incident. He will
also be responsible for all that naturally results from the commission of the act in
question.
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The Chamber elaborated on the meaning of "substantially":
688. . . . While there is no definition of "substantially," it is clear from the
aforementioned cases that the substantial contribution requirement calls for a
contribution that in fact has an effect on the commission of the crime. This is
supported by the foregoing Niirnberg cases where, in virtually every situation,
the criminal act most probably would not have occurred in the same way had not
someone acted in the role that the accused in fact assumed. For example, if there
had been no poison gas or gas chambers in the Zyklon B cases, mass
exterminations would not have been carried out in the same manner. The same
analysis applies to the cases where the men were prosecuted for providing lists of
names to German authorities. Even in these cases, where the act in complicity
was significantly removed from the ultimate illegal result, it was clear that the
actions of the accused had a substantial and direct effect on the commission of
the illegal act, and that they generally had knowledge of the likely effect of their
actions.
It defined "aiding and abetting" as follows:
689. The Trial Chamber finds that aiding and abetting includes all acts of
assistance by words or acts that lend encouragement or support, as long as the
requisite intent is present. Under this theory, presence alone is not sufficient if it
is an ignorant or unwilling presence. However, if the presence can be shown or
inferred, by circumstantial or other evidence, to be knowing and to have a direct
and substantial effect on the commission of the illegal act, then it is sufficient on
which to base a finding of participation and assign the criminal culpability that
accompanies it.
The Chamber also discussed the significance of physical presence during the
commission of an offense:
690. Moreover, when an accused is present and participates in the beating of
one person and remains with the group when it moves on to beat another person,
his presence would have an encouraging effect, even if he does not physically
take part in this second beating, and he should be viewed as participating in this
second beating as well. This is assuming that the accused has not actively
withdrawn from the group or spoken out against the conduct of the group.
691. However, actual physical presence when the crime is committed is not
necessary; just as with the defendants who only drove victims to the woods to be
killed, an accused can be considered to have participated in the commission of a
crime based on the precedent of the Niirnberg war crimes trials if he is found to
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be "concerned with the killing." However, the acts of the accused must be direct
and substantial.
Command Responsibility, Article 7(3) addresses command responsibility:
The fact that any of the acts referred to in articles 2 to 5 of the present Statute
was committed by a subordinate does not relieve his superior of criminal
responsibility if he knew or had reason to know that the subordinate was about to
commit such acts or had done so and the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators thereof.
The scope of Article 7(3) has been addressed in two preliminary motions
decided in the Blaskic case, one concerning the mens rea required for charges
alleging command responsibility, and the other concerning whether or not the
failure to punish provision in Article 7(3) offended the nullum crimen principle.
In the mens rea motion, the defense argued that the "knew or had reason to
know" standard should be defined as: "(1) actual knowledge; or (2) wanton
disregard of objective facts within the accused's actual possession compelling
the conclusion that the accused's subordinates where about to commit or had
committed the criminal acts alleged in the indictment." 54
In response, the prosecution argued that a decision on mens rea at the
pre-trial stage was premature, as the issue was too abstract in the absence of
evidence to be considered at trial. If the issue was appropriate for consideration
before the trial, the prosecution argued that a proper statement of the mens rea
standard was:
• Actual knowledge proved by direct evidence, or
• Actual knowledge proved by circumstantial evidence, the "must have
known" standard. The prosecution argued that the Tribunal should not
reject the "must have known" mens rea standard because, although it may be
conceptually similar to actual knowledge established by means o( direct
evidence, the evidentiary implications o{ knowledge inferred from
circumstantial evidence are significantly different. In particular, where the
crimes of subordinates are a matter of public notoriety, are numerous, or
occur over a prolonged period or in a wide geographical area, there is a
presumption that the commander had the requisite knowledge in the absence
o( evidence to the contrary, or
• Wanton disregard not only of facts within his actual possession but also of
facts that are not within his actual possession by reason of a failure on his part
to supervise properly his subordinates and in particular to require and obtain
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adequate reports or information and to be apprised of the actions of his
subordinates. The appropriate mens rea standard under international law is
wanton disregard of information of a general nature within the reasonable
access of a commander indicating the likelihood of actual or prospective
criminal conduct on the part of his subordinates. 55
The Trial Chamber rejected consideration of the substantive issues related to
mens rea as premature but granted the accused permission to raise the issues
again at trial. 56
Concerning the defense motion alleging that the provision related to failure
to punish liability offended the nullum crimen principle, the Chamber found
"that the case law and the international conventions which enshrine the
principle of the command responsibility of whoever fails to punish subordinates
who have committed crimes are fully adequate." 57
10. As regards international case-law, in the Tokyo trials, the Prime Minister
of Japan, HidekiTojo, was found guilty by the International Military Tribunal for
the Far East on the following grounds:
(He) took no adequate steps to punish offenders (who ill-treated
prisoners and internees) and to prevent the commission of similar offences
in the future. (. . .) He did not call for a report on the [Bataan death
march). When in the Philippines in 1943 he made perfunctory inquiries
about the march but took no action. No one was punished. (. . .) Thus the
head of the Government of Japan knowingly and wilfully refused to
perform the duty which lay upon that Government of enforcing
performance of the laws of war." [20 Tokyo Trials, 49845-49846].
Although in its motion the Defence pleads that he "was found criminally
responsible for both failure to prevent the recurrence of crimes and failure to
punish; proof of both elements was required for criminal liability to attach" (p.
21), the reasoning underlying that decision in no way justifies this argument. The
decision clearly held Tojo responsible for having failed to punish his subordinates
and thus emphasised that "No one was punished." That statement is based on
the following reasoning: failing to punish subordinates inevitably means failing to
prevent the recurrence of crimes, whereas by punishing subordinates, such
recurrence is naturally prevented, with the result that failure to punish alone is
sufficient grounds for command responsibility.
The Chamber also found support for its view in the Hostage Case (para. 11).
As to treaty law basis for failure to punish liability, the chamber stated:
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12. In respect of conventional law, it should be noted that the existence of
such a principle of responsibility is also specified in the provisions of Protocol I. A
review of the official record of the Geneva diplomatic conference which adopted
the Protocol shows that Articles 86 and 87 were adopted by consensus by the
delegations of more than 90 States present at the 45th plenary meeting. . . .
Thus Protocol I imposes, in Article 86(2), penal or disciplinary responsibility
on the part of superiors who did not take all practicable measures within their
competence "to prevent or repress the offence" committed by their subordinates.
As sanctioning the perpetrator of the crime is the effective means of repressing
the offense, the Protocol further considers that an omission to punish constitutes
a failure to comply with an obligation which engages command responsibility.
And as Article 87(3) provides that the High Contracting Parties and the Parties
to the conflict must demand of any commander that he implement the penal and
disciplinary measures against the perpetrators of violations, it demonstrates even
more clearly and specifically that, according to the Protocol, any failure to punish
an offense is grounds for command responsibility.
Potential Defenses
Duress. Article 7(4) of the ICTY Statute addresses the issue of superior orders:
"The fact than an accused person acted pursuant to an order of a Government
or of a superior shall not relieve him of criminal responsibility, but may be
considered in mitigation of punishment if the International Tribunal
determines that justice so requires." Although the statutory provision ensures
that superior orders, of themselves, will not constitute a defense, in most cases
the issue of superior orders will be linked with duress, and neither the Statute
nor the older case law adequately addresses duress as a potential defense. This
poses a significant problem, because in general, duress may constitute a
complete defense to all criminal charges in civil law systems, but it is not a
defense to murder-type charges in common law systems. In the Erdemovic Case,
Drazen Erdemovic, a Bosnian Croat who was a member of a Bosnian Serb
killing squad at Srebrenica which killed approximately 1,200 unarmed civilians
and who personally killed between ten and a hundred persons, submitted a
guilty plea to a crime against humanity charge. With his guilty plea, however,
he also stated:
Your Honour, I had to do this. If I had refused, I would have been killed together
with the victims. When I refused, they told me: "If you're sorry for them, stand
up, line up with them and we will kill you too." I am not sorry for myself but for
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my family, my wife and son who then had nine months, and I could not refuse
because then they would have killed me. 58
The Trial Chamber, composed entirely of judges from civil law
systems — Jorda (France), Odio Benito (Costa Rica), and Riad (Egypt) —
accepted the guilty plea after devoting substantial heed to its validity in the
judgment. Although the Chamber did not consider that a duress defense had
been established in the case of Erdemovic, it also indicated that in certain
carefully circumscribed circumstances duress could constitute a complete
defense to a crime against humanity charge (paras. 13-21).
Erdemovic appealed his sentence, and the duress issue was considered by
the Appeals Chamber. The Appeals Chamber issued four separate opinions
addressing duress and by a majority of three to two found that "duress does not
afford a complete defence to a soldier charged with a crime against humanity
and/or a war crime involving the killing of innocent human beings." 59 Judge
McDonald (USA) and Judge Vohrah (Malaysia) in a joint separate opinion,
and Judge Li (China) in a separate and dissenting opinion held that duress was
not a complete defense. Judge Cassese (Italy) and Judge Stephen (Australia)
submitted separate dissenting opinions indicating that duress could constitute
a complete defense in cases involving the killing of innocent persons, in limited
circumstances.
Judge McDonald and Judge Vohrah found that no customary international
law rule could be derived on the question of duress as a defense to the killing of
innocent persons (paras. 46-55). They then reviewed a large, but not
exhaustive, number of national systems in an attempt to determine whether
there was an applicable general principle of law recognized by civilized nations.
They concluded: "66 it is, in our view, a general principle of law recognized
by civilized nations that an accused person is less blameworthy and less
deserving of the full punishment when he performs a certain prohibited act
under duress." On the other hand, "67. The rules of the various legal systems of
the world are, however, largely inconsistent regarding the specific question
whether duress affords a complete defence to a combatant charged with a war
crime or a crime against humanity involving the killing of innocent persons."
The two judges then went on to deny duress as a complete defense, on policy
grounds.
75. The resounding point from these eloquent passages is that the law should
not be the product or slave of logic or intellectual hair-splitting, but must serve
broader normative purposes in light of its social, political and economic role. It is
noteworthy that the authorities we have just cited issued their cautionary words
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Jurisprudence of the ICT for the Former Yugoslavia
in respect of domestic society and in respect of a range of ordinary crimes
including kidnapping, assault, robbery and murder. Whilst reserving our
comments on the appropriate rule for domestic national contexts, we cannot but
stress that we are not, in the International Tribunal, concerned with ordinary
domestic crimes. The purview of the International Tribunal relates to war crimes
and crimes against humanity committed in armed conflicts of extreme violence
with egregious dimensions. We are not concerned with the actions of domestic
terrorists, gang- leaders and kidnappers. We are concerned that, in relation to the
most heinous crimes known to humankind, the principles of law to which we give
credence have the appropriate normative effect upon soldiers bearing weapons of
destruction and upon the commanders who control them in armed conflict
situations. The facts of this particular case, for example, involved the
cold-blooded slaughter of 1,200 men and boys by soldiers using automatic
weapons. We must bear in mind that we are operating in the realm of
international humanitarian law which has, as one of its prime objectives, the
protection of the weak and vulnerable in such a situation where their lives and
security are endangered. Concerns about the harm which could arise from
admitting duress as a defence to murder were sufficient to persuade a majority of
the House of Lords and the Privy Council to categorically deny the defence in
the national context to prevent the growth of domestic crime and the impunity
of miscreants. Are they now insufficient to persuade us to similarly reject duress
as a complete defence in our application of laws designed to take account of
humanitarian concerns in the arena of brutal war, to punish perpetrators of
crimes against humanity and war crimes, and to deter the commission of such
crimes in the future? If national law denies recognition of duress as a defence in
respect of the killing of innocent persons, international criminal law can do no
less than match that policy since it deals with murders often of far greater
magnitude. If national law denies duress as a defence even in a case in which a
single innocent life is extinguished due to action under duress, international law,
in our view, cannot admit duress in cases which involve the slaughter of innocent
human beings on a large scale. It must be our concern to facilitate the
development and effectiveness of international humanitarian law and to
promote its aims and application by recognising the normative effect which
criminal law should have upon those subject to them. Indeed, Security Council
Resolution 827 (1993) establishes the International Tribunal expressly as a
measure to "halt and effectively redress" the widespread and flagrant violations
of international humanitarian law occurring in the territory of the former
Yugoslavia and to contribute thereby to the restoration and maintenance of
peace.
They considered, but rejected, possible exceptions such as proportionality or
cases where the victims would die regardless of the participation of the accused.
Their preferred approach was to consider duress exclusively as a mitigating
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factor during the sentencing phase. The rejection of duress as a complete
defense was, however, applicable to soldiers alone:
84. Secondly, as we have confined the scope of our inquiry to the question
whether duress affords a complete defence to a soldier charged with killing
innocent persons, we are of the view that soldiers or combatants are expected to
exercise fortitude and a greater degree of resistance to a threat than civilians, at
least when it is their own lives which are being threatened. Soldiers, by the very
nature of their occupation, must have envisaged the possibility of violent death
in pursuance of the cause for which they fight. The relevant question must
therefore be framed in terms of what may be expected from the ordinary soldier
in the situation of the Appellant. What is to be expected of such an ordinary
soldier is not, by our approach, analysed in terms of a utilitarian approach
involving the weighing up of harms. Rather, it is based on the proposition that it
is unacceptable to allow a trained fighter, whose job necessarily entails the
occupational hazard of dying, to avail himself of a complete defence to a crime in
which he killed one or more innocent persons.
Judge Li, in his separate dissenting opinion, adopted somewhat similar
reasoning (paras. 5-12). Judge Cassese submitted a forceful dissenting
opinion:
1 1 . I also respectfully disagree with the conclusions of the majority of the
Appeals Chamber concerning duress, as set out in the Joint Separate Opinion
of their Honours Judge McDonald and Judge Vohrah and on the following
grounds:
(i) after finding that no specific international rule has evolved on the question
of whether duress affords a complete defence to the killing of innocent persons,
the majority should have drawn the only conclusion imposed by law and logic,
namely that the general rule on duress should apply — subject, of course, to the
necessary requirements. In logic, if no exception to a general rule be proved, then
the general rule prevails. Likewise in law, if one looks for a specific rule governing
a specific aspect of a matter and concludes that no such rule has taken shape, the
only inference to be drawn is that the specific aspects is regulated by the rule
governing the general matter:
(ii) instead of this simple conclusion, the majority of the Appeals Chamber
has embarked upon a detailed investigation of "practical policy considerations"
and has concluded by upholding "policy considerations" substantially based on
English law. 1 submit that this examination is extraneous to the task of our Tribunal.
This International Tribunal is called upon to apply international law, in
particular our Statute and principles and rules of international humanitarian law
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and international criminal law. Our International Tribunal is a court of law; it is
bound only by international law. It should therefore refrain from engaging in
meta-legal analyses. . . .
12. In short, I consider that: (1) under international criminal law duress may
be generally urged as a defence, provided certain strict requirements are met;
when it cannot be admitted as a defence, duress may nevertheless be acted upon
as a mitigating circumstance: (2) with regard to war crimes or crimes against
humanity whose underlying offence is murder or more generally the taking of
human life, no special rule of customary international law has evolved on the
matter; consequently, even with respect to these offences the general rule on
duress applies; it follows that duress may amount to a defence provided that its
stringent requirements are met. . . .
The relevant case-law is almost unanimous in requiring four strict conditions
to be met for duress to be upheld as a defence, namely:
(i) the act charged was done under an immediate threat of severe and
irreparable harm to life or limb;
(ii) there was no adequate means of averting such evil;
(iii) the crime committed was not disproportionate to the evil threatened
(this would, for example, occur in case of killing in order to avert an assault). In
other words, in order not to be disproportionate, the crime committed under
duress must be, on balance, the lesser of two evils;
(iv) the situation leading to duress must not have been voluntarily brought
about by the person coerced.
In addition, the relevant national legislation supports the principle that the
existence in law of any special duty on the part of the accused towards the victim
may preclude the possibility of raising duress as a defence.
17. It is worth insisting on the fourth requirement just mentioned, in order to
highlight its particular relevance to war-like situations. According to the
case-law on international humanitarian law, duress or necessity cannot excuse
from criminal responsibility the person who intends to avail himself of such
defence if he freely and knowingly chose to become a member of a unit,
organisation or group institutionally intent upon actions contrary to
international humanitarian law.
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Judge Stephen, in a separate and dissenting opinion, agreed with Judge Cassese
and critized the rationale of the common law approach and the desirability of
transferring it to the international arena (paras. 64-67).
Reprisals, A reprisal is an illegal act resorted to after the other side in an armed
conflict has committed unlawful acts and continues them after being called
upon to cease. The reprisal is not a retaliatory act or a simple act of vengeance;
it is a crude law-enforcement device. It must be roughly proportionate to the
original wrongdoing, and it must be terminated as soon as the original
wrongdoer ceases illegal actions. 60 In certain circumstances, the defense of
reprisal may be raised to charges for offenses within the jurisdiction of the
ICTY. Reprisals against several categories of persons and objects are prohibited
by the treaty law applicable to international armed conflict. In particular,
reprisals are prohibited against civilians and civilian objects. For all practical
purposes, the only legitimate reprisal targets in international conflict are
combatants and certain other military objectives. The treaty law of internal
conflicts does not address the reprisal issue. UN General Assembly Resolution
2675 indicates that reprisals against civilians are prohibited in all
circumstances. 61
The question of the reprisal defense was litigated in the Rule 61 proceeding
concerning Milan Marti in February 1996. The prosecution argued that the
Chamber should decide that reprisals against civilians were prohibited in all
conflicts, including internal conflicts, because (1) an explicit prohibition
already existed in treaties applicable to international conflict; (2) UNGA
Resolution 2675 reflects the state of customary law for all conflicts; (3) Article
4 of Protocol II requiring protection of civilians "in all circumstances"
implicitly prohibits reprisals; and (4) reprisals are an ineffective means of law
enforcement. 62 The Trial Chamber agreed:
17. Therefore, the rule which states that reprisals against the civilian
population as such, or individual civilians, are prohibited in all circumstances,
even when confronted by wrongful behaviour of the other party, is an integral
part of customary international law and must be respected in all armed
conflicts. 63
Future Developments
The jurisprudence of the ICTY is a work in progress. The ICTY judges were
initially elected for a four -year term that expired on 16 November 1997. Five of
the sitting judges have been reelected, and six new judges have been elected,
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Jurisprudence of the ICT for the Former Yugoslavia
commencing four-year terms on 17 November 1997. The duration of the 1CTY
is uncertain and dependent on budgetary approval by the United Nations
General Assembly. Certainly, there is enough work to keep the 1CTY fully
employed beyond 2001. It is reasonable to assume that the 1CTY jurisprudence
will have an impact on the development of the law of armed conflict for some
time to come, particularly as this jurisprudence is analyzed in foreign ministries,
defense departments, and academic journals.
It is practicable to make preliminary assessments o{ what has happened to
date. The various and continuing efforts of the several ICTY Chambers to
grapple with the extreme complexity of the facts in the Yugoslav conflict(s) to
determine the applicable law are, it is suggested, to be commended rather than
criticized. The simplistic approaches of much scholarly writing in this area have
produced convenient but essentially unreasoned solutions. For obvious
reasons, no one raised the issue of whether or not World War II was a "war" in
the trials following that conflict. Most contemporary conflicts do raise issues
related to conflict classification, and these issues must be faced as long as the
bodies of law applicable to international and internal conflicts differ in
complexity and sophistication, as they do at present. The approach of the
Appeals Chamber to elaborating upon customary law applicable to all conflicts,
individual criminal responsibility for offenses committed in internal conflicts,
and customary law in internal conflicts will have an enormous impact on the
future jurisprudence of the ICTY. It may also, to the extent it is viewed as
credible by outside observers, precipitate and contribute to a long-term trend
toward the development of a uniform body of customary law applicable to all
conflicts. The "two box" approach to the law of armed conflict for international
and internal conflict is a viable teaching tool but presents substantial
difficulties when applied to a refractory reality.
The work of the ICTY in elaborating upon the meaning and scope of crimes
against humanity, command responsibility, the defense of duress, and the
doctrine of reprisals has begun, but much remains to be done concerning these
and other issues. It is unlikely that defendants in future cases will decline to
raise the defense of legitimate reprisal when the single relevant decision to date
has been made in a Rule 61 proceeding. It is also unlikely that defendants will
decline to raise the defense of duress when the Appeals Chamber ruling in
Erdemovic has been so hotly contested. Further, bearing in mind the mixed
civilian and military leadership roles of several of the accused now in custody,
the ICTY will be compelled to assess the extent to which the doctrine of
command responsibility applies to civilian leaders.
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It is also reasonable to assume that the ICTY will make a substantial
contribution to the law concerning the conduct of hostilities. Three
observations are relevant in this regard. First, to the extent practicable, the
ICTY OTP has paid due heed to the ruling of the Appeals Chamber in the Tadic
Jurisdiction decision and has attempted to frame charges which are applicable
to both international and internal armed conflicts. One example is Count 3 of
the Amended Indictment against General Blaskic, which charges him with "an
unenumerated Violation of the Laws or Customs of War, as recognized by
Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Customary Law,
Article 5 1 (2) of Additional Protocol I and Article 13 (2) of Additional Protocol
II (unlawful attack on civilians)." 64 One potential result of this charging
practice is that the Chambers will respond by developing substantially uniform
standards for all forms of conflict.
Second, it is probable that the Chambers will consider for the first time
charges such as inflicting terror on the civilian population. Acts or threats of
violence the primary purpose of which is to spread terror among the civilian
population are prohibited by both Article 51(2) of Protocol I and Article 13(2)
of Protocol II. The dictionary defines terror as "extreme fear," but many lawful
acts in armed conflict cause extreme fear. The prohibition must, therefore,
refer to unlawful acts or unlawful threats of violence, the primary purpose of
which is to spread extreme fear among the civilian population. Threats to wipe
out a city or to exterminate its population would be clear examples of
prohibited threats. Whether or not unlawful acts do in fact spread terror
among the civilian population can be determined by psychological evidence;
whether or not the primary purpose of unlawful acts is to spread terror can be
inferred from the circumstances. For example, conducting cat-and-mouse
sniping against the civilians of a besieged city whereby some civilians would be
attacked on a random basis and all civilians would be in a constant state of
extreme fear would appear to be an example of a deliberate attempt to spread
terror.
Third, it is possible that a body of law based on the uncodified concept o{
crimes against humanity will be developed in parallel with the existing law
concerning the conduct of hostilities. It would be practicable to prosecute
certain attacks against the enemy as crimes against humanity contrary to
Article 5 of the Statute. The Report of the Secretary General discussing the
ICTY Statute states in part that "crimes against humanity refer to inhumane
acts of a very serious nature, such as wilful killing, torture or rape, committed as
part of a widespread or systematic attack against any civilian population on
national, political, ethnic, racial or religious grounds." 65 Although there is no
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precedent for crimes against humanity charges related to attacks against the
enemy, there would not appear to be any conceptual barrier against using such
charges in appropriate circumstances. The most appropriate charges would
appear to be under Article 5(a) for attacks where death occurs, and under
Article 5(i) for other injuries including mental suffering. It would be essential
to establish that the prohibited acts were committed as part of a widespread or
systematic attack against a civilian population. If the ICTY does elaborate a
body of law for the conduct of hostilities based on an imprecise concept o{
crimes against humanity and, at a minimum, independent oi conflict
classification, the relatively precise law of armed conflict may be shaken to its
foundations.
Notes
These comments are made in a personal capacity and necesarily reflect neither the author's
views in an official capacity nor the views of either the Office of the Prosecutor or the United
Nations.
1. The ICTY Statute is contained in the Annex to the Secretary-General's Report on
Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the Territory of the Former
Yugoslavia (Report of the Secretary-General Pursuant to Paragraph 2 of Security Council
Resolution 808 (1993)), U.N. SCOR, 48th Sess., U.N. Doc. S/25704 (1993), reprinted in 32
I.L.M. 1159 (1993). The language of the Statute itself is found at 32 I.L.M. 1192 (1993)
[hereinafter ICTY Statute! . It was adopted unanimously by the Security Council at its 3217th
meeting, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc.
S/RES/827 (1993), reprinted in 32 I.L.M. 1203 (1993).
2. Security Council Resolution 955 Establishing the International Tribunal for Rwanda,
Including the Statute of the Tribunal (1994) , S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg.,
art. 1, U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598 (1994) {hereinafter ITR
Statute]. The ITR Statute was adopted by the Security Council on November 8, 1994, and is an
Annex to Resolution 955.
3. As examples, the Trial Chamber Decision on the Motion for Release by the Accused Slavko
Dokmanovic (ICTY No. IT 95-13a-PT) issued on 22 October 1997 addresses the ICTY power of
arrest, and the Appeals Chamber Judgment on the Request of the Republic of Croatia for Review of
the Decision of Trial Chamber 11 of 18 July 1997 (ICTY No. IT 95-14-AR 108bis) issued on 29
October 1997 addresses the ICTY power to issue orders to States and to State officials.
4. ICTY Fact Sheet January 19, 1998.
5. Theodor Meron, The Geneva Conventions as Customary Law, 81 AM. J. INPL L. 348-70
(1987), and Report of the Secretary-General pursuant to Paragraph 2 of Security Council
Resolution 808 (1993), U.N. Doc. S/25704, May 3, 1993, paras 35-37.
6. The Socialist Federal Republic of Yugoslavia (SFRY) ratified Geneva Conventions I— IV
in 1950 and Additional Protocols I and II in 1979. The Federal Republic of Yugoslavia has
acknowledged that it is bound by these agreements as a successor State. Croatia deposited a
declaration of succession to Geneva Conventions I— IV and Additional Protocols I and II on May
11, 1992, and because of previous ratification by the SFRY, these instruments came into force for
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William Fenrick
Croatia retroactively on October 8, 1991, the date of Croatian independence. See International
Committee of the Red Cross, Notification to the Governments of the States Parties to the
Geneva Conventions of 12 August 1949 for the Protection of War Victims: Succession of
Croatia, July 9, 1992 (on file with author). Bosnia -Herzegovina deposited a declaration of
succession to Geneva Conventions I— IV and Additional Protocols I and II on December 31,
1992, and because of previous ratification by the SFRY, these instruments came into force
retroactively on March 6, 1992, the date of Bosnian independence. See International Committee
of the Red Cross, Notification to the Governments of the States Parties to the Geneva
Conventions of 12 August 1949 for the Protection of War Victims: Succession of
Bosnia-Herzegovina, Feb. 17, 1993 (on file with author).
7. Croatia has entered into the following agreements: (a) a Declaration of Respect for
International Humanitarian Law at the Hague on November 5, 1991 (Presidents of all six
republics of the former Yugoslavia made the same declaration); (b) a memorandum of
Understanding with the SFRY on November 27, 1991 in Geneva; (c) a Set of Rules of
Procedures and a Plan of Operation for a Joint Commission to Trace Missing Persons and Mortal
Remains, signed in Pecs, Hungary, with the SFRY on December 16, 1991, pursuant to the
November 27, 1991, MOU; (d) an Addendum to the November 27, 1991, MOU signed in
Geneva on May 23, 1992, with the Federal Republic of Yugoslavia (FRY) ; and (e) an Agreement
on Release and Repatriation of Prisoners signed in Budapest on August 7, 1992, and concluded
in the framework of the November 27, 1991, MOU and the May 23, 1992, Addendum to the
MOU.
Bosnia-Herzegovina has entered into the following agreements: (a) a Declaration of Respect
for International Humanitarian Law at the Hague on November 5, 1991 (Presidents of all six
republics of the former Yugoslavia made the same declaration); (b) an Agreement under
common Article 3 of the Geneva Conventions signed in Geneva on May 22, 1992, by
representatives of the President of Bosnia-Herzegovina (Izetbegovic) , the President of the
Serbian Democratic Party (Karadzic) , the President of the Croatian Democratic Community
(Bikic), and the President of the Party of Democratic Action (Izetbegovic again); (c) an
Agreement to implement the May 22, 1992, agreement signed in Geneva on May 23, 1992, and
involving representatives of the same groups; (d) an Agreement to establish the
Bosnia-Herzegovina ICRC Plan of Action following the May 22, 1992, agreement signed in
Geneva on June 6, 1992, by representatives of the President of Bosnia- Herzegovina, the
President of the Serbian Democratic Party, and the President of the Croatian Democratic
Community (the representative of the President of the Party of Democratic Action was not able
to attend the meeting and was not invited to ratify the agreement) ; (e) a Programme of Action
on Humanitarian Issues Agreed between the Co-Chairman to the London Conference on
August 27, 1992, and the Parties to the conflict, signed on separate but identical documents by
Radovan Karadzic, by Alija Izetbegovic (who indicated in handwriting that he was signing as
President of the Republic of Bosnia-Herzegovina) , and by Mate Boban; and (f) an Agreement on
the Release of Transfer of Prisoners signed in Geneva on October 1, 1992, on the basis of the
agreement of May 22, 1992, by representatives of the President of the Republic of
Bosnia-Herzegovina, the President of the Serbian Democratic Party, the President of the
Croatian Community, and the Party of Democratic Action.
8. In re Dusko Tadic: Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction (The Prosecutor v. Dusko Tadic), 1995 I.C.T.Y. No. IT-94-1-AR72 (Oct. 2),
majority decision reprinted in 35 I.L.M. 32 (1996) [hereinafter Jurisdiction DecisionJ.
115
Jurisprudence of the ICT for the Former Yugoslavia
9. In re Dusko Tadic: Defence Brief to Support the Motion on the Jurisdiction of the
Tribunal (The Prosecutor v. Dusko Tadic), 1995 I.C.T.Y. No. IT-94-I Oune 23), at 1142
[hereinafter Defence Brief].
10. In re Dusko Tadic: Response to the Motion of the Defence on the Jurisdiction of the
Tribunal (The Prosecutor v. Dusko Tadic), 1995 I.C.T.Y. No. IT-94-I Ouly 7), at 36-46
[hereinafter Response Brief].
11. In re Dusko Tadic: Amicus Curiae Brief Presented By the Government of the United
States of America (The Prosecutor v. Dusko Tadic), 1995 I.C.T.Y. No. IT-94-I Ouly 17), at
25-36.
12. In re Dusko Tadic: Prosecution Response to the Defence Interlocutory Appeal Brief
(The Prosecutor v. Dusko Tadic), I.C.T.Y. No. IT-94-I, (Sept. 1), at 2-13.
13. Jurisdiction Decision, supra note 8, para. 77, at 57.
14. Id., para. 84, at 60.
15. Id., para. 76.
16. Id., para. 85, at 60, paras. 143-44, at 73.
17. Jurisdiction Decision, supra note 8, at 6 (separate opinion of Judge Abi-Saab).
18. International Tribunal for the Prosecution of Persons Responsible for Serious Violations
of International Humanitarian law Committed in the Territory of the former Yugoslavia since
1991, Rules of Procedure and Evidence, U.N. Doc. IT/32/Rev.ll, July 25, 1997. Rule 61
addresses the procedure to be followed in case of failure to execute a warrant and provides for an
ex parte proceeding before one of the trial chambers, during which the prosecutor presents some
of the evidence in the case and attempts to have the indictment reconfirmed. As there is no
finding of guilt or innocence, it is not a trial in absentia.
19. Prosecutor v. Ivica Rajic Review of the Indictment Pursuant to Rule 61 of the Rules of
Procedure and Evidence, I.C.T.Y. No. IT-95-12-R61, Sept. 13, 1996.
20. Prosecutor v. Dusko Tadic, Opinion and Judgment, I.C.T.Y. No. IT-94T-T 7 (May
1997) (hereinafter Tadic Trial Decision).
21. Military and Paramilitary Activities in and against Nicaragua (Nic. v. U.S.), Merits,
Judgment, 1986 I.C.J. Reports 14.
22. Supra note 20, paras 118-20, 569.
23. Id., para 584.
24- Supra note 21, para 115 (emphasis added).
25. Supra note 8, para 586.
26. Id., para 587.
27. Id., paras 607-08.
28. Supra note 21, Sep. Op. Judge Ago, para. 16 (emphasis added).
29. Brief of Argument of the Prosecution (Cross-Appellant) The Prosecutor v. Dusko Tadic
I.C.T.Y. No. IT-94-I-A Can. 12, 1998), at 5-45.
30. Id. at 13-30.
31. Defence Brief, supra note 9, at 12.
32. Response Brief, supra note 10, at 47-53.
33. Michael Akehurst, Custom as a Source of International Law, 47 BRIT. Y.B. INTL L. 53
(1974-75).
34. See Geneva Convention I, art. 49; Geneva Convention II, art. 50; Geneva Convention
III, art. 129; Geneva Convention IV, art 146.
35. Michael Botheetal, New Rules for Victims of Armed Conflicts 620 (1982).
36. See, e.g., Peter Rowe, War Crimes and the Former Yugoslavia: The Legal Difficulties, 32 MIL.
L. & L. WAR REV. 317, 331-33 (1993); Daphna Shrag & Ralph Zacklin, The International
116
William Fenrick
Criminal Tribunal for the Former Yugoslavia, 5 EUR. J. INT'L L. 360, 366 (1994); Frits Kalshoven,
Paper Prepared for Symposium on the International Criminal Tribunal for Former Yugoslavia,
The Hague (Feb. 16, 1995) (unpublished manuscript).
37. Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1995 I.C.J. 75 (CR
95/34) (Nov. 15) (Verbatim Record).
38. Id. at 77.
39. Id. at 79.
40. Supra note 21, at para 218, citing Corfu Channel, Merits, 1949 I.C.J. Rep. 22.
41. Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL
MILITARY TRIBUNAL 171, 253-54 (1947) [hereinafter Nuremberg Judgment].
42. The Judgment of the Tribunal (in The German High Command Trial), 12 LAW
Reports of Trials of War Criminals 59, 86-94 (1949).
43. Supra note 21.
44. Mer on, supra note 5, at 361.
45. Charter of the International Military Tribunal, art. 6(c), in THE LAWS OF ARMED
CONFLICT 911, 913-14 (Dietrich Schindler & Jiri Toman eds., 3rd ed. 1988) [hereinafter
Nuremberg Charter].
46. Nuremberg Judgment, supra note 41, at 254-55.
47. Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes
against Peace and against Humanity, Dec. 20, 1945, in HOWARD S. LEVIE, TERRORISM IN WAR:
The Law of War Crimes 558, 558-62 (1993).
48. Nuremberg Charter, supra note 45, art. 6(c).
49. The Tribunals in the Einsatzgruppen Case and the Justice Case decided no link with armed
conflict is necessary. See LEVIE, supra note 47, at 395-99. The Tribunals in the Flick Case and the
Ministries Case decided otherwise. See id. at 399.
50. Defence Brief, supra note 9, at 12-13.
51. Jurisdiction Decision, supra note 8, paras. 72, 138-42.
52. Supra note 29, at 59-66.
53. Id. at 61-11.
54- Defence Motion in Limine Regarding Mens Rea Required for Charges Alleging
Command Responsibility and for Bill of Particulars re Command Responsibility Portion of
Indictment, Prosecutor v. Tihomir Blaskic, I.C.T.Y. Case No. IT-95-14-T, filed Dec. 4, 1996.
55. Response of the Prosecutor to the Defence Motion in Limine Regarding Mens Rea for
Charges Alleging Command Responsibility and for Bill of Particulars re Command
Responsibility Portions of the Indictment, Prosecutor v. Tihomir Blaskic, I.C.T.Y. Case No.
IT-95-14-T, filed Jan. 20, 1997.
56. Decision Rejecting the Defence Motion in Limine Regarding Mens Rea Required for
Charges Alleging Command Responsibility and for Bill of Particulars re Command
Responsibility Portions of the Indictment, Prosecutor v. Tihomir Blaskic, I.C.T.Y. Case No
IT-95-14-T, filed Apr. 4, 1997.
57. Decision on the Defence Motion to Strike Portions of the Amended Indictment Alleging
"Failure to Punish" Liability, Prosecutor v. Tihomir Blaskic, I.C.T.Y. Case No IT-95-14-T, Apr.
4, 1997, para 9.
58. Sentencing Judgment, The Prosecutor v. Drazen Erdemovic, I.C.T.Y. Case No.
IT-96-22-T, Nov. 29, 1996, para 10.
59. Judgment of the Appeals Chamber, Prosecutor v. Drazen Erdemovic, I.C.T.Y. Case No.
IT-96-22-A, Oct. 7, 1997, para 19.
117
Jurisprudence of the ICT for the Former Yugoslavia
60. Frits Kalshoven, Belligerent Reprisals (1971); Frits Kalshoven, Belligerent
Reprisals Revisited, 21 NETH. Y.B. iNrLL. 43 (1990).
61. G.A. Res. 2675, U.N. GAOR 25th Sess., Supp. No. 28, U.N. Doc A/8028 (1996).
62. Brief on the Applicable Law for Rule 61 Hearing, Prosecutor v. Milan Martic, I.C.T.Y.
Case No. IT-95-11 (1996).
63. Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence,
Prosecutor v. Milan Martic, I.C.T.Y. Case No. IT-95-11-R61, Mar. 13, 1996.
64- Amended Indictment, Prosecutor of the Tribunal v. Tihomir Blaskic, I.C.T.Y. Case No.
IT'95-14'T,Nov. 15, 1996.
65. SG Report, supra, note 5, para 48.
118
V
The Role of Individuals
in International Humanitarian Law
and Challenges for States in Its
Development
Dieter Fleck
A
CENTURY AGO, ADMIRAL CHARLES H. STOCKTON prepared a
U.S. Naval War Code which was approved by President McKinley in
June 1900 but was revoked four years later after certain concerns were
expressed by foreign governments. While it appears that the episode would
deserve a historical study evaluating the significance of this particular code
both for training Navy officers at the time and for later similar efforts, the more
general question of the role of individuals in international humanitarian law
appears worth being reflected upon in a study honoring Charles Stockton.
What is the role of individuals in international law? To what extent are
individuals bearers of international legal rights and obligations? What is their
role as actors in the progressive development of that law?
Not surprisingly, different answers to these complex questions have been
considered over time, and they remain rather controversial. As Karl Josef
Partsch concluded in 1985, it is difficult to formulate a thesis in this respect
Role of Individuals
which both reflects a general consensus among writers and conforms with State
practice. He also expressed doubts whether the increased concern for the
protection of human rights during the last decades has led to a transformation
of the legal position of the individual. 1 Indeed, the central role of States as
sovereign subjects of international law has not changed very much throughout
this century. But political efforts to ensure protection of the individual and the
non-governmental, as well as governmental, international organizations
working to this end have gained considerable influence. It is significant that
practical aspects in the wider field of human rights and public opinion in many
quarters have increasingly challenged more traditional views of international
law as a whole, thus underlining the rights of individuals which all States must
respect and protect.
The aims of this study are to describe the role of the individual in the
ongoing evolution of international humanitarian law as a result of both factual
and policy developments, assess certain deficiencies of existing conventional
law, and develop various methodological considerations regarding
international law-making for military operations. Conclusions to be drawn
from these thoughts may affect the work of policy makers, legal practitioners,
and academic lawyers alike.
Evolution of International Humanitarian Law
Rights and obligations of individuals vis-a-vis their government have been
postulated since long before our present age. The specific question of whether
the Sovereign has an international obligation to observe the ordinary laws of
war even toward rebellious subjects who openly take up arms against him had
already surfaced by the eighteenth century. 2 Individuals were not seen as
subjects of international law, a role that has been reserved for States since early
times. But characterizing human beings as pure objects of international law has
never been a convincing conclusion either. The subject-object dichotomy
appears hardly appropriate in an area where legal protection of individuals is of
topical importance. 3
The rapid factual development during the present century has added
additional arguments: national sovereignty is challenged today by the end of
the Cold War, failed processes of modernization, and still-existing burdens
inherited from colonialism. There is, indeed, a need for global response to
existing security risks. Acts of terrorism, drug abuse, problems of migration,
and environmental protection require combined efforts which States today
cannot successfully perform except in cooperation with other States,
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Dieter Fleck
international organizations, and even individuals. Challenged to deal with
security matters in a broader sense, States and societies are called upon to make
new efforts in order to overcome practical inabilities in the implementation of
shared principles. New ideas, attitudes, and resources have to be developed
jointly to ensure economic well-being and to meet environmental risks. The
challenges of our present information age require long-term attitudes based on
technological skills not always available within existing State establishments,
thus calling for increased cooperation between government agencies, private
companies, and individuals.
A distinct international interest on the part of national parliaments in a
growing number of democratic States today very significantly affects effort
taken on a global scale. Widely shared political concerns (in some States even
constitutional constraints) are relevant for parliamentary decision-making
regarding the use of military power. But there is also an increasing role for
human rights considerations, in calling for responsible action towards gross
violations in other States. National parliaments are increasingly involved in
international relations. They pass legislation regulating the sending of their
military forces abroad and the long-term or short-term stationing of foreign
forces on their own territory. Members of national parliaments participate in
international conferences and are important interlocutors for official visitors
from foreign States. Parliamentary debates are often used to articulate a
political interest in developments within other countries.
Human rights violations are typical fields of legitimate interference in
matters of general concern which today cannot be left to the domestic
jurisdiction of a particular State. State sovereignty at the end of this century is
no longer the same as it was at its beginning. These trends also reveal evolving
restraints in State immunity law, restraints which deserve thorough evaluation
from both national and international legal perspectives.
The present evolution of humanitarian law may be described as an evolution
of terms. The term armed conflict, which for a long time was not considered very
different from a war between States (whether formerly declared or factually
started), has now more or less evolved in meaning vis-a-vis its international
character. By far, most armed conflicts today are non-international. Very much
to be deplored, this development has not led to a decrease in cruelty on the
battlefield. The extent of suffering in non-international armed conflicts calls
for an international response. The term humanitarian protection has undergone
a similar development. It was first used to indicate protection granted by States,
on issues limited by strict adherence to the principle of non-interference in the
political affairs of other States. But there is hardly any objection today to
121
Role of Individuals
application of this term in a broader sense, including the right to intervene for
humanitarian purposes against policy positions taken by other States. It also
encompasses the activities of non-governmental organizations (NGOs), and
even individuals, to ensure and strengthen human rights protection. This
change inevitably leads to a new notion of international law, which is no longer
confined to the conduct of States in their mutual relationships but now extends
to individual human rights and to the global commitments of States not only to
respect but also to ensure respect for the protection of victims of human rights
violations.
In 1899 and 1907 the Hague Peace Conferences took decisive steps, first by
incorporating the obligation to issue instructions to the armed forces on the
laws and customs of war on land (Article 1 of Hague Convention IV), and later
by providing that a belligerent party which violates these regulations shall be
responsible for all acts committed by its armed forces and liable to pay
compensation (Article 3 of Hague Convention IV).
After World War I there were but weak attempts to develop individual
criminal responsibility under international law. 4 However, individual rights
were stressed and developed in various domains. The concept of the protection
of minorities, provided for in several peace treaties and special conventions
connected therewith, generated a new attitude of conflict management in
certain States which had either gained their independence or whose territory
was otherwise affected by the results oi the war. Although the great powers
effectively rejected any effort to extend this protection to minorities in other
States, the underlying legal principles influenced the Declaration on the
International Rights of Man adopted by the Institut de Droit International in
1929. 5 The concept of self-determination, developed by President Woodrow
Wilson, constituted the basis for the protection of non-self-governing
territories under the League of Nations mandate system. For the first time, the
protection of refugees under international law was implemented in a
multinational framework. Last, but not least, the Geneva Conventions of 1929
considerably improved the condition of the wounded and sick in armies in the
field, as well as the treatment of prisoners of war.
No effort was made at that time to enact individual responsibility oi either
political or military leaders or those executing orders. But acts of genocide, war
crimes, and crimes against humanity committed in World War II mobilized the
international community to take at least the first steps to close this gap. The
Genocide Convention of 1948 defined genocide as a crime under international
law and introduced an obligation to try or extradite persons charged with this
crime. It provides that competence rests with national tribunals of the State in
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Dieter Fleck
the territory of which the act was committed, or "such international penal
tribunal as may have jurisdiction" (Article VI). The obligation under the
Geneva Conventions of 1949 to punish or extradite persons who have
committed grave breaches of humanitarian law was similarly based on the idea
of national jurisdiction. The same applies to penal and disciplinary sanctions
under Article 28 of the Cultural Property Convention of 1954. Nevertheless,
these instruments effectively introduced the principle of individual
responsibility for war crimes and crimes against humanity into conventional
law, thus confirming the conclusion of the Nuremberg Tribunal that "[c] rimes
against international law are committed by men, not by abstract entities, and
only by punishing individuals who commit such crimes can the provisions of
international law be enforced."
While the idea of individual responsibility under international law has
developed considerably during this century, there is still a reluctance to accept
corresponding rights of the individual, rights based on international legal rules
and given teeth by specific remedies against one's own, as well as foreign,
States. Current State practice normally limits legal remedies to strict rules
under existing national law. Arguments based on international law are hardly
of importance to national jurisdiction. Where the question of remedies for
violation of rights based on international law is raised, it is as a matter of
principle not for the individual owner of such rights to take effective action, but
rather the State of which he or she is a national.
The Third Geneva Convention of 1949 was one of the first international
instruments to establish an individual right corresponding to the idea o(
individual responsibility. According to its Article 109, paragraph 3, no sick or
injured prisoner of war may be repatriated against his will during hostilities.
This right was further developed by the evolving practice of ensuring each
prisoner of war the right to refuse repatriation at the end of an armed conflict, if
he so chooses, and the right to have a private interview with an ICRC
(International Committee of the Red Cross) official to confirm that his
decision was made freely and without coercion.
The 1977 Additional Protocols did not further develop those individual
rights, except to provide fundamental legal guarantees to be granted within the
relevant national system (Article 75 of Protocol I) and a right to refuse surgical
operation (Article 11). In human rights conventions, however, a decisive step
was taken to strengthen the rights of individual persons. The 1966 Optional
Protocol to the International Covenant on Civil and Political Rights provides
that a State may recognize the competence of the Committee of Human Rights
to receive and consider communications from individuals subject to its
123
Role of Individuals
jurisdiction who claim to be victims of a violation by that State of any of the
rights enumerated in the Covenant, provided they have exhausted all available
domestic remedies. Likewise, the 1984 Torture Convention introduced the
option for a State to accept the competence of the International Committee
against Torture to investigate complaints by individuals falling under the
jurisdiction of that particular State.
Even in the absence of legal remedies, individuals may claim collective
rights, e.g., the right of self-determination as confirmed in Article 1(2) of the
UN Charter and common Article 1(1) of the 1966 Covenants on Civil and
Political Rights and on Economic, Social, and Cultural Rights. There is some
sense, therefore, in assuming that respect for this right is an erga omnes
obligation binding all States and owed to the international community as a
whole. The right of self-determination cannot be limited to the peoples of
existing States; otherwise, there would be no self-determination beyond a
closed and often very arbitrary system which in itself provides the basis for
demands for change. There is, however, no consensus on the present legal
prerequisites for claiming a right of self-determination. The liquidation of
former European colonial regimes might be least controversial today. The
United Nations has outlawed colonialism, and ail relevant decisions can be
effectively based on Chapters XI— XIII of the UN Charter. The right of
self-determination may also be used to support efforts to restore sovereignty in
territories where it has been illegally denied in recent times. In situations,
however, which are characterized by neither colonialism nor illegal
occupation, any recourse to the right of self-determination remains highly
controversial. There is no right of separation from well-established States. An
exception to this rule may be the fact that serious human rights violations
could generate a right of separation as a last resort. 7 Consensus on this issue will
remain difficult to achieve. It is no surprise that acceptance of the right of
self-determination in the international community tends to increase
proportionally with the distance from actual events.
Within the Organization on Security and Cooperation in Europe (OSCE)
process, the significance of the human dimension was stressed by the third
basket of the Helsinki Final Act of August 1, 1975, and more specifically during
the meetings held in 1989 (Vienna), 1990 (Copenhagen), and 1991 (Cracow,
Geneva, and Moscow). It remains to be seen, however, whether this process
may lead to the creation of new individual rights which go beyond a
strengthening of existing commitments under the International Covenant on
Civil and Political Rights of 1966 and the European Convention on Human
Rights and Fundamental Freedoms of 1950. The International Helsinki
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Dieter Fleck
Federation, in its 1997 Report, stated that human rights violations had been,
and were still being, committed in thirty-two of the fifty-four OSCE member
States; yet, there is no effective international mechanism to examine such
allegations or to ensure that appropriate remedies are available in the interest
of the victims.
In accordance with the jurisdiction of the Court of Justice of the European
Communities, any citizen of the European Union has a right to see the law
determining his or her position respected by Community institutions, as well as
member States. This right, and the corresponding remedies under European
Union law, is comparable to national legal guarantees granted by a State to its
citizens. Such guarantees cannot be expected to become part of global
international law in the foreseeable future.
In a recent systematic study of the rights and obligations of individuals as
subjects of international humanitarian law, George Aldrich has assessed the
existing individual criminal responsibility under international law for war
crimes, genocide, and crimes against peace, in the framework of possible
individual rights corresponding to individual obligations. 9 He very
convincingly stresses that the latter are much less developed than the former.
In this context, he has coined the term "imperfect right" to describe a situation
where (1) legal rights of an individual have been violated, (2) the individual
perpetrator is subject to criminal punishment as a result, and (3) the
perpetrator, as well as his State, may at least theoretically be liable for damages.
While individual remedies are available only in exceptional cases, individual
claims remain widely dependent upon protection by the State concerned, and
the latter is alone authorized to put such claims forward, or even waive them at
the expense of those whose rights have been violated.
The extent to which attempts to solve this situation are realistic is
debatable. International cooperation is regularly developed without the
benefits of law courts, without sanctions protecting the owner of specific rights
against violations, and without a full-fledged system of reparations. Disputes
can very often be settled only through negotiations on the basis of formal
equality, without recourse to higher authorities. Where reparations can be
achieved, they often tend to remain rather symbolic.
Yet the role of legal arguments in such cooperation should not be
underestimated. Legal positions are of importance, irrespective of the
opportunity for enforcing their implementation. Even symbolic acts of
reparation may have relevance for the participants as part of psychological or
historical Vergangenheitsbewdltigung. The dissuasive role of legal reasoning may
125
Role of Individuals
add to the significance of such activities in avoiding possible claims as much as
in settling existing ones.
The evolution of law is a complex process, influenced by many players and
dependent on various different sources. This is particularly true for
international law, with all its imperfections. Efforts to overcome deficiencies in
this area require patience and a good sense of proportion. It is in this spirit that
existing gaps in existing international law ought to be assessed.
Deficiencies of Existing Conventional Law
At the present stage of legal development, it is no longer possible, as a matter
of positive law, to regard States as the only subjects oi international law. 10
However, there are a number of deficiencies which make it difficult for
individuals either to exercise rights not deriving from their national legal
system against their own State or to exercise rights against foreign States
without the support of their own government acting on their behalf.
The most important deficiency of international humanitarian law as laid
down in existing conventions and agreements is its limited scope of
applicability. Designed for armed conflicts of an international character, most
of these rules do not formally apply to non- international armed conflicts. In an
effort to secure minimum rules in such conflicts, common Article 3 of the 1949
Geneva Conventions and the 1977 Additional Protocol II have underlined the
legal difference between international and non-international armed conflicts
in a rather rudimentary way. If these provisions were understood as limiting
legal protection in non-international conflicts to an enumerative set of
minimum rules, they would have to be considered as counterproductive in the
interest o{ individual victims. Such a perception would be in strong
contradiction to undeniable requirements o( reality on the battlefield and
would run counter to widely accepted principles of the rule of law. An
excessively restrictive observance of the difference between international and
non-international armed conflicts in State practice would evidence a two-book
mentality unlikely to find any support in public opinion. There are but few
armed forces, however, which have formally abolished such double standards
by following an official policy of compliance with the full body of rules of
international humanitarian law during non-international conflicts. 11
Corresponding recommendations developed at the international level have
not been implemented as widely as one would wish. 12 The fact that such a
policy serves not only humanitarian interests but also operational requirements
has been stressed by experts; 13 nonetheless, widespread ignorance of it remains.
126
Dieter Fleck
Yet concrete results have never been fully investigated by legal and
operational experts. The degree to which rules of international armed conflict
are tailored to police-type operations in different levels o( crisis during
non-international conflicts may also be a matter of dispute. The use of the
shotgun and tear gas, which must be seriously questioned during armed
conflicts, was never prohibited for police operations, although the three
general principles underlying the law of armed conflict are fully relevant to
police operations: that the use offeree is permissible only if it is directed against
legitimate targets, it is prohibited to cause unnecessary suffering, and perfidious
acts are unlawful. The relevance of armed conflict law for military operations
other than war needs to be studied in further detail. While interdisciplinary
efforts to this effect would seem appropriate, and though the role of operational
experts cannot be underestimated, it should not be overlooked that legal and
policy considerations will often be decisive when balanced against factual and
operational considerations.
A further deficiency of international humanitarian law remains the large
number of breaches of its existing rules. The problem is not unique to this field
of law; it also applies to certain parts of national law, such as traffic law,
taxation, customs, or environmental provisions. Though it would appear
inappropriate to draw comparisons between these very different areas of legal
regulation, one possible common conclusion may be that frequent violations
do not necessarily amount to complete disregard of the law. Nevertheless, the
need to further develop sanctions and foster dissemination of particular rules
must be underlined.
Objective fact-finding, so essential for effective law enforcement, is difficult
to achieve. The Commission established under Article 90 of the 1977 Protocol
I Additional to the Geneva Conventions to investigate allegations of serious
violations of the Conventions and o{ the Protocol has not yet been given a
single chance to provide its services. This is the case even though a growing
number of States have recognized its competence and despite the fact that it is
designed to work without publicity so as to avoid publicly offending States and
to facilitate diplomatic solutions. There is no effective international
jurisdiction at a global scale for adjudicating claims for violations of
humanitarian law. The national jurisdiction of the author State is in many
cases not sufficient. As far as the national jurisdiction of third States is
concerned, the act of State doctrine still provides for sovereign immunity of the
author State for acta iure imperii, with no exception for serious human rights
violations.
127
Role of Individuals
Given this situation, the issue of whether claims brought before the courts of
the author State may be based on national or international law is less relevant.
It may be noted, however, that the German Federal Constitutional Court has
held that no general rule of international law excludes individual claims for
acts or omissions of a foreign State committed during a war. 14 The Court saw, in
principle, parallel remedies for individuals and States, but it also underlined the
fact that individual claims may be expressly excluded by peace treaties and
similar treaties, such as the London Agreement on German External Debts of
February 27, 1953. 15
Rights of the individual are decisively expressed by the manner and extent
to which claims may be pursued; legal remedies to receive reparation (in terms
of restitution or compensation) are still very imperfect. Full reparation can
hardly be achieved in cases involving violations of humanitarian law. In this
respect, pecuniary harm should not obscure the importance of reparation for
emotional and moral damage. Legal restitution in terms oi criminal sanctions
had important psychological reparation effects for raped women in the former
Yugoslavia, even where financial payments were impossible or unrealistic. The
work of the Truth Commission in South Africa, which leads to a lump sum
payment of no more than two thousand Rand (U.S. $400) to each of
twenty-two thousand victims of the apartheid regime, irrespective of the
amount and degree of suffering, nevertheless has had the effect of restoring
individual confidence in the rule of law in situations were adequate payment of
damages is impossible or not expected.
These few examples may suffice to support the thesis that no system oi
individual claims could be considered sufficient for systematic and massive
violations of legal principles and rules. Even States trying in the most diligent
manner to arrange for reparations have failed to cope with the extent of cruelty
of which humankind is capable.
The imperfect state oi international humanitarian law implementation
reflects a situation common to many areas of international law, one that may be
best influenced by personal activities within governments, non-governmental
organizations, and by the public. 16 This deficiency also offers opportunities for
an active role by the individual, given that all implementation work depends
on human activities at various levels oi the State and on the willingness and
ability of State officials to cooperate with non-governmental organizations and
private citizens.
The role of individuals may also be affected by challenges to the law of
neutrality during the present period of rapid development in the law. Both the
Hague Peace Conferences prior to World War I and the development o( the
128
Dieter Fleck
Geneva Conventions are important examples oi the role of neutral States in
supporting the implementation and further development of humanitarian
rules. The responsibility of neutral States to develop the law protecting
individuals in the future is also evident. 17
In failing States — which remain subjects of international law but, due to
their lack of capacity to act, are exempt from responsibility under international
law — even fundamental individual rights are unprotected. Failing States are
characterized by total dissolution of order as a consequence of internal
development and the absence of an effective negotiating partner vis-a-vis the
international community. Although direct criminal responsibility o(
individuals exists, and criminal jurisdiction can be exercised by third States and
competent international tribunals, individual claims would appear unrealistic
under such conditions. 1
Considerations for International Law^Making
It is particularly difficult to assess possibilities for international law-making
in areas relating to military operations. States tend to stress the ad hoc
significance of such operations. Even in cases in which military forces are
operating in implementation of Security Council resolutions, it is not beyond
dispute which body of law — that of armed conflict or law of peacetime
operations — is properly applicable. This might explain the reluctance to
acknowledge a need to develop further the rules, especially in a systematic
manner. Furthermore, there are both general and specific obstacles to
developing new conventional law in this area. Opinio iuris y a prerequisite for
law creation (not only in the context of customary law), is only slowly, and
often rather vaguely, shaped by public opinion and State practice.
A cautious attitude towards conventional law creation is also suggested by
recent developments. The most important example remains the experience
with the 1977 Protocols Additional to the Geneva Conventions. It took
considerable time, despite the presence of the ICRC as an effective and
professional promoter of that law, to establish the consensus necessary to reach
the stage of signature in 1977, and even more so to carry the effort through to
ratification (now in more than 140 States). In each case, ratification was based
on national decisions, formally closed to international coordination — although
nevertheless subject to a certain extent to outside influences.
The lesson which may be gleaned from the 1980 Convention on Certain
Conventional Weapons is not very different. Developed as a side-result of the
negotiations on the 1977 Protocols, the 1980 Convention was at first limited to
129
Role of Individuals
a prohibition of particular means and methods of combat that were o{ no
distinct operational importance. 19 The number of States parties to this
Convention remained considerably low until the First Review Conference in
1995 when the new Protocol IV on Blinding Laser Weapons of October 13,
1995, was added, a remarkable, although limited, step towards new
conventional rules. The revision of Protocol II on Prohibitions or Restrictions
on the Use of Mines, Booby -Traps, and Other Devices on May 3, 1996, was an
even more important second step, one supported by the international
campaign against land mines. In this respect, the concerted efforts of many
energetic players and the overwhelming evidence of excessive civilian
casualties in more than a hundred States mobilized public opinion and soon led
a considerable number of governments to change their position as to the
desirability and extent of a prohibition. At the same time, this exceptional
campaign illustrated that the creation of conventional law is uncertain even in
the face of overwhelming public expectations. Successful efforts to prohibit
certain uses of anti-personnel land mines have not been accompanied in all
quarters by equally effective efforts toward a prohibition of production,
stockpiling, and sale. Thus, the new Convention on the Prohibition of
Landmines, which was opened for signature in Ottawa on December 3, 1997,
did not gain the same initial support as the revised Protocol II in 1996.
Furthermore, individual rights have not been stipulated in this context; the
issue, however, may well be taken up later.
Political commitments and a policy of "soft law" implementation in some
States may facilitate such trends. But they cannot substitute for a solid and
often cumbersome process of creating conventional legal rules based on
reciprocity, careful implementation of existing law, and the exercise of
sanctions against breaches.
The relevant UN policy is still uncertain in many respects. While individual
human rights were first addressed in the Charter and international instruments
developed under the auspices of the World Organization, many solutions have
remained rather erratic. New legal provisions remain subject to the political
will of governments. Proposals developed within the United Nations
Secretariat have to cope with this reality. Yet the responsibility o{ } and
opportunities for, the UN to influence legal perceptions by offering relevant
information and developing appropriate proposals should not be
underestimated; they should be given full support by the member States.
An important example in this respect is the 1994 Convention on the Safety
of United Nations and Associated Personnel. Efforts to prepare this new
convention did not go as far as consolidating and codifying international rules
130
Dieter Fleck
suggested by the Secretary-General. 20 The Convention contains a few articles
on certain fundamental obligations of States, balanced by provisions on the
relevant obligations of such personnel. The solution found is not free from gaps
and uncertainties. It is based on a considerable misunderstanding that Article
2(2) of the Convention excludes UN operations authorized by the Security
Council as enforcement actions under Chapter VII "in which any of the
personnel are engaged as combatants against organized armed forces and to
which the law of international armed conflict applies." Enforcement actions
under Chapter VII should never be, and hence never be misinterpreted as,
armed conflicts between the military forces involved. Rather, UN forces must
be respected as enjoying immunity under Article 105 of the Charter and the
general terms of the 1946 Convention on Privileges and Immunities of the
United Nations. Their members may not be taken as prisoners of war; in the
event they are detained, it would be absurd to suggest they should not be
released before "the cessation of active hostilities" in accordance with Article
118(1) of the Third Geneva Convention, the accepted rule for combatants in
armed conflicts. Thus, the 1994 Convention does not meet important
requirements of peace enforcement which led to its development. 21
More successful, though considerably more controversial and time
consuming, were efforts to establish the International Criminal Court (ICC).
After several decades of discussion in various fora, this idea is now supported by
the global consensus on the urgent need to establish the ad hoc tribunals for
the former Yugoslavia and for Rwanda. A conference of States will be
convened in 1998 to prepare the legal basis of the ICC in more concrete terms
than ever before. The competence of the ICC will be limited to acts of
genocide, crimes against humanity, war crimes, and wars of aggression. Its
jurisdiction will be subsidiary; only cases that cannot be adjudicated by
national courts because they are unable or unwilling to restore justice shall be
brought to the International Tribunal. In this context, the extent to which a
State Party to the planned ICC Statute may have to modify its national laws
(e.g., concerning extradition of nationals) remains to be clarified. 22
Jurisdiction over command responsibility issues will remain a complex
subject. 23 Major efforts will be required to introduce rules of procedure that
are not included in the statute, subject to further experience of the ICC. In
this respect, the development of international rules of evidence will be of key
importance. 24
Once established, the permanent International Criminal Tribunal will be a
great step forward to ensuring the rule of law as a prerequisite for internal
security, social stability, and peaceful development. It will support justice
131
Role of Individuals
where national judicial organs are failing. To build confidence on the part of
the victims, to ensure legal balance, and avoid creating perceptions of victors'
justice, a permanent international court is preferable to any ad hoc tribunal.
The relationship between national and international jurisdiction should,
however, be assessed in greater detail. Under what constraints should a State
extradite its own nationals? Moreover, when should it extradite its own
military personnel, who are subject to particular national order and discipline,
and accountable to the highest political leadership? Are there limits to the ne
bis in idem rule in cases where a national court has issued a sentence that at the
international level might be considered too mild in comparison? How should
cooperation between international and national judicial organs be developed?
A thorough reassessment also appears to be necessary on the issue of
individual claims. The 1LC Draft Articles on State Responsibility, adopted in
1996, did not mention the individual as a bearer of rights and obligations at
all. 25 Its Article 40 offers a very broad definition of the injured State, including
even infringements of rights arising from a multilateral treaty or rules of
customary international law in third States, anywhere on the globe, if it is
established that "the right has been created or is established for the protection
of human rights and fundamental freedoms." Thus, human rights violations in
any part of the world would allow any State to consider itself as injured and
entitled under Article 42 of the draft "to obtain from the State which has
committed an internationally wrongful act full reparation in the form of
restitution in kind, compensation, satisfaction and assurances and guarantees
of non-repetition, either singly or in combination." Hardly any State, however,
will defend claims of citizens of third States. If the individual victim himself
could put claims forward against the author State and base his claim on
international law rather than the national law of that State, reparations might
be more effective.
An excellent example of an expert proposal compiled in international
cooperation to support lawmaking by States is the revised set of Basic
Principles and Guidelines on the Right to Reparation for Victims of Gross
Violations of Human Rights and Humanitarian Law prepared by Theo van
Boven as Special Rapporteur of the UN Commission on Human Rights. 26 It
starts from the principle that every State has the duty to respect, and to ensure
respect for, human rights and humanitarian law. This obligation includes the
duty to prevent violations, investigate violations, take appropriate action
against violators, and afford remedies and reparation to victims. As stipulated
by the Special Rapporteur, every State shall ensure that adequate legal or other
appropriate remedies are available to any person claiming that his or her rights
132
Dieter Fleck
have been violated. Reparation may be claimed by the direct victims or their
immediate family. It includes restitution, compensation, rehabilitation,
satisfaction, and guarantees of non-repetition. Restitution, which is designed
to reestablish the situation that existed prior to the violations, shall include
restoration of liberty, family life, citizenship, return to one's place of residence,
and use of property. Compensation shall be provided for any pecuniarily
assessable damage resulting from violations of human rights and humanitarian
law, such as physical or mental harm, (including pain, suffering, and emotional
distress) and lost opportunities (including education, material damages, and
loss of earnings — including in turn loss of earning potential, harm to reputation
or dignity, and costs required for legal or expert assistance). Rehabilitation
shall be provided, and it will include medical and psychological care as well as
legal and social services. Satisfaction and guarantees of non-repetition shall be
provided, including, as necessary, cessation of continuing violations,
verification of the facts and full and public disclosure of the truth; an official
declaration or a judicial decision restoring the dignity, reputation, and legal
rights of the persons connected with the victim; an apology, including public
acknowledgement of the facts and acceptance of responsibility; judicial or
administrative sanctions against persons responsible for the violations;
commemorations and tributes to the victims; inclusion in human rights
training and in history textbooks of an accurate account of the violations
committed in the field of human rights and humanitarian law; and preventing
the recurrence of violations — by such means as ensuring effective civilian
control of military and security torces, restricting the jurisdiction of military
tribunals to only specifically military offenses committed by members of the
armed forces, strengthening the independence o{ the judiciary, protecting the
legal profession and human rights defenders, and improving, on a priority basis,
human rights training for all sectors of society, in particular for military and
security forces, as well as for law enforcement officials.
Acceptance of these draft principles and guidelines would progressively
develop existing international law, which is still very far from providing full
reparations in favor of individuals. In most situations, the right to reparation
still rests within municipal legal orders; there are no other means of
enforcement except under national law.
International judicial mechanisms developed under the European and the
American Conventions on Human Rights will hardly gain more than regional
importance in this respect, although the interlinked mechanism of the
European Commission and the European Court of Human Rights, which
allows for a certain degree of individual complaint against infringements of
133
Role of Individuals
fundamental freedoms, has been recommended as a model for other areas. 27 Of
practical significance could be the relevant UN procedures in fora such as the
United Nations Claims Commission (UNCC). In this respect, however, more
experience still has to be collected. In addition to the fact that practice remains
to be developed in administering funds on behalf of UN organs, State practice
remains decisive for legal development. This practice will be influenced, but
not exclusively governed, by general principles as shaped in legal writings over
the centuries. 28 There is still no comprehensive concept of reparations in cases
of breach of humanitarian law. Practical solutions remain rudimentary, and it
must be admitted that full reparation can hardly be expected in any case, even
those involving grave breaches o{ the law.
Considering the issue in more general terms, and maybe in a longer time
frame, however, allows for an overall picture in which legal principles are of clear
relevance. The Martens clause, shaped into conventional law at the First Hague
Peace Conference in 1899 and reaffirmed in the 1977 Additional Protocols to
the Geneva Conventions, has been used to close legal lacunae and develop
appropriate principles and rules in cases not covered by existing conventional
law. Its reference to established custom, the principles of humanity, and the
dictates of public conscience has provided arguments that have been seen as
describing underlying principles for legal provisions and rules of conduct for
States and international organizations. The relevance of these provisions and
rules for legal and policy decisions has never been seriously disputed. The role of
the media and its influence for international decision making has been very often
enhanced by principles and attitudes which enjoy support in various quarters,
even among people who disagree on many daily political issues. Backed by
professional international institutions such as the ICRC, by relevant NGOs, and
by academia, such principles are part of the process of law creation today, even in
areas where there were different, or even no, rules at an earlier stage. This may
lead to an application of legal rules developed for other purposes, in cases that
had previously been considered quite different.
Lawmaking by analogy is not a new idea. Lawyers tend to draw arguments
from comparable situations, cases, and legal regulations. Vattel was convinced
that the rules o( the natural law of nations can be derived by analogy from the
natural law of man; 29 the opposite was, however, never common consensus.
Rules of the law of nations have only limited influence on internal law. The
differences in the responsibilities and interests involved are too great.
Individuals can hardly compare their interests with group interests. It would be
inappropriate to compare individuals with States; it may even remain an open
question whether or not it is in the best interest of the individual to develop
134
Dieter Fleck
rights (and duties) under international law independently from rights and
duties of his or her home State. Yet individuals need protection against States,
a requirement which is not limited to the relationship with their own State.
This is so because today considerable ties, expanding in quantity and quality,
exist between States and nationals of other States, requiring both sides to
observe rules towards each other and making it necessary for individuals to
claim rights on their own behalf without recourse to support from their home
State. There is an evolving custom and indeed a developing legal opinio to
prove the existence of such rights. °
This process has also affected the role of the individual in the development
of law, its possible influence on decision making, and the interpretation of rules
and their implementation. There are but rare exceptions to the principle that
rules of international law are created by States and not by private individuals.
But it should be remembered that States act through individual men and
women as their representatives. These representatives are not only bound by
instructions in performing their particular mission, but they very often actively
develop positions that are approved by their superiors, even accepted without
further deliberation. As are all individuals, government experts are subject to
outside influences in a complex personal process of decision making. This is
well accepted even by traditional law. The sources of international law
enumerated in Article 38, paragraph 1 (a-c), of the Statute of the International
Court of Justice reveal a certain role of the individual in the lawmaking process.
Treaties and contracts may be concluded between States or international
organizations and foreign private law persons. Customary law and general
principles of law are based on man-made arguments, subject to confirmation by
State practice. As subsidiary means for the determination of rules of
international law, Article 38, paragraph 1(d), expressly refers not only to
judicial decisions but also to "the teachings of the most highly qualified
publicists of the various nations." The present information age may lead to a
considerable increase in the influence of a large number of such persons. At the
same time, the transparency of available information may also support
mainstream trends in arguments and consideration of relevant State practice.
Thus this development often contributes to practice-oriented, and less
extravagant, results.
Conclusions
Even if the present assessment remains incomplete in various respects and is
subject to further developments, there can be no doubt of the fact that
135
Role of Individuals
individuals clearly have an active role to play as bearers of individual rights and
obligations under international humanitarian law, or that individuals acting for
States, international organizations, or even on their own enjoy considerable
opportunity to participate in the development of that law.
The many factors of human decision making require an interdisciplinary
approach, one which includes ethical, cultural, technological, economic, and
operational considerations. A complete assessment must be based on an array
of different aspects. There is no guarantee, however, that objective criteria will
be observed. Rather, the importance of policy constraints suggests that the
degree to which particular aspects will be taken into due consideration and
weighed against other aspects and requirements is undergoing rapid
development. The role of legal advisors in this complex process of decision
making is a delicate one. Weighing different interests exposes him or her to
blame for wishful thinking; sticking to the more technical task of interpreting
existing rules and provisions would offer less than might be rightly expected.
Lawyers should stress the importance of policy constraints on military
operations. It is their task to balance the rights and obligations of the operators
in the field to ensure that they are fully informed about the relevant legal
framework and that they fully use existing opportunities. This advisory task,
however, has to be performed with a sense of proportion as regards the methods
to be applied and the objective to be sought. It would be wrong to see the legal
advisor solely in the role of post factum defender of the operator. Rather, he has
to involve himself in the decision-making process, influence target selection,
accept full responsibility for his advice, and develop the courage to dissuade
others from excessive plans.
As Rosalyn Higgins has suggested, international law is a process of
authoritative decision making, not just the neutral application of rules. 31 This
is especially true for rules of armed conflict law, which are based on policy
considerations derived from the principle of distinction between civilian
objects and military objectives, the avoidance of unnecessary suffering or
superfluous injury, and the prohibition of acts of perfidy. The whole body of
humanitarian law in armed conflicts is to be understood as a process of
respecting and implementing these few principles. It is not a fixed set of bright
line rules which can be applied irrespective of the factual context. To use
Rosalyn Higgins's words, none of the problems explored can be satisfactorily
resolved by confident invocation of a "correct rule."
It is interesting to speculate how Admiral Stockton would have reacted to
some of the modern challenges described in this contribution. He would
probably have developed arguments and positions different from those he
136
Dieter Fleck
chose in his time. But he would surely have done so with an attitude very
similar to that for which he was well known by his contemporaries. Practical
assessments, professionalism, and legal passion might have led him to personal
initiatives in support of both national interests and the protection of the rights
of individuals.
It should be stressed that none of the many issues to be raised in this context
can be solved without international cooperation. The existence of
international rights and obligations depends on acceptance by more than one
State. It is therefore not enough to draw on a particular national legal system.
Rather, it is the international environment of individual action that also
influences the legal assessment in a given context.
Results in this continuing process will remain as incomplete and imperfect as
nearly everything else in legal development. It remains difficult to make
convincing assessments except in retrospect. Long-term effects often remain
obscure, and anticipating objections which may arise at a later stage is risky by
any standard. Thus developing humanitarian law remains as much a challenge
for individual actors as for States and organizations authorizing, sponsoring, or
supporting this task.
Notes
1. Partsch, Individuals in International Law, in 8 ENCYCLOPEDIA OF PUBLIC
International Law 316-21 (Bernhardt ed., 1985).
2. De Vattel, Le Droit des gens ou principes du droit naturel, 1 758, , bk. Ill, ch.
XVIII, p. 238 (Edition Carnegie, 1916); REMEC, THE POSITION OF THE INDIVIDUAL IN
International Law According to Grotius and Vattel (1960) .
3. Higgins, Problems & Process: International Law and How We Use It 48-55
(1994), rightly developed the argument that the whole notion of "subjects" and "objects" has no
credible reality and no functional purpose, considering that individuals are participants, along
with States and international organizations, of a dynamic process of international cooperation in
which international legal obligations are implemented, remedies and sanctions exercised, and
disputes settled.
4- Similar efforts date back in the fifteenth century. See Green, War Crimes, Crimes against
Humanity and Command Responsibility, NAVAL WAR COLL. REV., Spring 1997 at 26.
5. 35(11) annuaire de l'institut de droit international 298 (1929).
6. The Trial of Major War Criminals: Proceedings of the International
Military Tribunal Sitting at Nuremberg Germany, pt. 22 (H.M.S.0. 1950), at 447.
7. Thurer, Das Selbstbestimmungsrecht der Volker und die Anerkennung neuer Staaten, in
Neues EuropAisches VOLKERRECHT NACH DEM ENDE DES OST-WEST-KONFLIKTES? 43-58
(Neuhold & Simma eds., 1996).
8. Case 26/62, van Gend & Loos, Feb. 5, 1963, ECR 3. See also Case 33/70 (1970).
9. Aldrich, Individuals as Subjects of International Humanitarian Law, in THEORY OF
International Law at the Threshold of the 21st Century: Essays in Honour of
KRZYSTOFSKUBISZEWSKI851 (Makarczyk ed., 1996).
137
Role of Individuals
10. I Oppenheim, International Law 848 (pt. 2-4) Oennings & Watts eds., 9th ed.
1992).
11. DoD Directive 5100.77, DOD LAW OF War PROGRAM, July 10, 1979, para. E-l; U.S.
Navy, The Commander's Handbook on the Law of Naval Warfare (NWP 1-14M)
(1995), para. 6.1.2; federal ministry of defence of germany, humanitarian law in
Armed Conflicts— Manual, § 211 (1992).
12. International Institute of Humanitarian Law, Declaration on the Rules of International
Humanitarian haw Governing the Conduct of Hostilities in Non-International Armed Conflicts, INTL
Rev. Red Cross, Sept.-Oct. 1990, at 404.
13. Greenwood, Scope of Application of Humanitarian Law, in THE HANDBOOK OF
Humanitarian Law in Armed Conflicts, § 211, para. 5 (Fleck ed., 1995).
14. BVeriGE 94,315, 330 (decision of May 13, 1996).
15. 333 U.N.T.S. 3; BGB1 1953 II 331. Art. 5, para. 2, of the London Agreement provided
that "claims arising out of the Second World War by countries which were at war with or were
occupied by Germany during that war, and by nationals of such countries, against the Reich and
agencies of the Reich, including costs of German occupation, credits acquired during occupation
on clearing accounts and claims against the Reichskreditkassen shall be deferred until the final
settlement of the problem of reparation." The Treaty on the Final Settlement with respect to
Germany of 12 September 1990 (BGB1 1990 II 1317) did not address reparations.
16. Fleck, Implementing International Humanitarian Law — Problems and Priorities, INTL REV.
RED CROSS, March-April 1991, at 140.
17. Thurer, Humanitdt und Neutralitdt — zum politischen und vblkerrechtlichen
Spannungsverhaltnis zweier Grundprinzipien der schweizerischen Aussenpolitik, in VOLKERRECHT IM
DIENSTE DES MENSCHEN: FESTSCHRIFT FUR HANS HAUG 279, 307 (Hangartner & Trechsel eds.,
1986).
18. Thurer, in THURER, HERDEGEN & HOHLOCH, DER WEGFALL EFFEKTIVER
STAATSGEWALT: THE FAILED STATE, Berichte der Deutschen Gesellschaft fur Volkerrecht,
1996, at 9-47.
19. Differences of opinion on the military value of incendiary weapons, as affected (though
not largely prohibited) by Protocol III of the Convention, may be of minor importance in this
context.
20. F3ourloyannis-Vrailas, The Convention on the Safety of United Nations and Associated
Personnel 44 INT'L & COMP. L. Q. 560 (1995).
21 . Fleck & Saalfeld, Combining Efforts to Improve the Legal Status of UN Peace-keeping Forces
and their Effective Protection, INTL PEACEKEEPING, June- August 1994, at 82-S4-
22. Penna, The International Criminal Court, 1 SINGAPORE J. INTL&COMP. L. 227 (1997).
23. Green, War Crimes, Crimes against Humanity, and Command Responsibility, NAVAL WAR
COLL. REV., Spring 1997, at 26-68.
24- Dixon, Developing International Rules of Evidence for the Yugoslav and Rwanda Tribunals, 7
TRANSNATLL. &CONTEMP. PROBS. 81 (1997).
25. Report of the International Law Commission on the work of its forty-eighth session, 6
May- 26 July 1996, G.A.O.R., 51st sess., supp. 10 (A/5110), at 125 (on the ILC Draft Articles) .
26. E/CN.4/Sub.2/1996/17 (24 May 1996) (for the revised Basic Principles and Guidelines).
See Report of the UN Secretary-General (E/CN.4/1997/29) and Commission on Human Rights
Resolution 1997/29.
27. Dinstein, The Implementation of International Human Rights, in RECHT ZWISCHEN
UMBRUCH UND BEWAHRUNG. FESTSCHRIFT FUR RUDOLF BERNHARDT 353 (Beyerlin et al. eds.,
1995).
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Dieter Fleck
28. Green, Enforcement of the Law in International and NonAntemational Conflicts — The Way
Ahead, 24 DENVER J. INT'L L. &POLT 285 (1996).
29. REMEC, supra note 2, at 128.
30. Meron, Human Rights and Humanitarian Norms as Customary Law (1989).
Hannikainen, Peremptory Norms Qvs Cogens) in International Law ; Historical
Development, Criteria, Present Status (1988).
31. HlGGINS, supra note 3, at 267.
139
140
VI
What Is— Why Is There
the Law of War?
Leslie Green
w
RITING IN 1832, Clausewitz maintained that:
[T]o impose our will on the enemy is [the] object of force. . . . The fighting
force must be destroyed: that is they must be put in such a condition that they can no
longer carry on the fight.. . . War is an act of force, there is no logical limitation to
the application of force. . . . Attached to force are certain imperceptible limitations
hardly worth mentioning, known as international law and custom, hut they scarcely
weaken it. ... [In fact,] kind-hearted people might . . . think there was some
ingenious way to disarm or defeat an enemy without too much bloodshed, and
might imagine that is the true goal of the art of war. Pleasant as it sounds, it is a
fallacy that must be exposed: war is such a dangerous business that the mistakes
which come from kindness are the very worst. . . . [However,] if civilized nations
do not put their prisoners to death or devastate cities and countries, it is because
intelligence plays a larger part in their methods [than was the case among
savages] and has taught them more effective ways of using force than the crude
expression of instinct. 1
In response to this assertion, it might be said that the very "intelligence" to
which he refers as playing a larger part in the methods of warfare, in fact
expresses itself in the very rules of international law and custom which he
The Law of War
cynically derides as "hardly worth mentioning." As if to confirm this, reference
may be made to the comment by General Colin Powell when submitting his
report to the United States Congress on "The Role of the Law of War" during
Operation DESERT STORM. In opening, the general stated, "Decisions were
impacted by legal considerations at every level, [the law of war] proved
valuable in the decision-making process." 2
Before we can legitimately comment on the issue of legal control — the jus in
hello — it is necessary to pay some attention to the lawfulness of war itself — the
jus ad helium. In earlier times this meant deciding whether the war was being
fought for a "just" cause, a characterization largely dependent on whether the
war received the approval of the church. 3 In accordance with the views of
Machiavelli, this soon came to mean that any war in which a Christian prince
was engaged was obviously "just" 4 and "a necessary war is a just war," 5 while the
"fathers" of international law sought to set out a variety of causes which would
enable a ruler — justly — to resort to the use of force, normally in the name of
self-defense. With the rise of socialism and the workers' movement, the
concept of "justness" shifted, so that the only "just war" was the "class war."
However, in practice this was shown to be nothing but an ideology, for with but
few exceptions even the "workers" were prepared to defend their country when
it was a victim of aggression.
The first international steps towards declaring war illegal came with the
adoption of the Covenant of the League of Nations. 6 While this did not
expressly ban war, it sought to limit the occasions on which a League member
could resort to force. In accordance with Article 16, "should any Member of
the League resort to war in disregard of its covenants . . . , it shall ipso facto be
deemed to have committed an act of war against all Members of the League,"
thereby laying itself open to the imposition of economic sanctions. In practice,
as demonstrated in, for example, the Italo-Ethiopian war, this did not really
amount to a great deal. The practical difficulty of forbidding war and making
resort thereto an offense against international law may be seen in the fate of the
draft Treaty of Mutual Assistance drawn up by the League Assembly in 1923. 7
This solemnly proclaimed "that aggression is an international crime," with the
parties undertaking that "no one will be guilty of its commission." The
"criminal" penalty envisaged was purely financial. Since it proved impossible to
define "aggression," the treaty remained a draft. The same fate befell the 1924
Draft Treaty of Disarmament and Security. 8 Equally abortive was the League's
Geneva Protocol for the Pacific Settlement of International Disputes of 1924.
By this, "a war of aggression constitutes a violation of [the] solidarity [of the
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members of the international community] and an international crime; . . . and
[with a view to] ensuring the repression of international crimes" the parties
forswore war save by way of "resistance to acts of aggression or when acting in
agreement with the Council or the Assembly of the League of Nations in
accordance with provisions of the Covenant and of the present Protocol." As
with earlier exercises, there was no provision for criminal liability, other than
financial sanctions. The same is true of the various hortatory or declaratory
resolutions to similar effect adopted by both the League Assembly or the
Conference of American States. This did not, however, inhibit the
International Military Tribunal at Nuremberg from resting part of its finding
that aggressive war was criminal at international law on these non-binding
instruments. 1
It was not until Secretary of State Frank Kellogg of the United States and
Foreign Minister Aristide Briand of France proposed the agreement which
carries their names, officially the Pact of Paris for the Renunciation o{ War,
that any treaty dealing with the "legality" of war was adopted. The 1928 Pact
was somewhat simple in its terms, merely stating that the High Contracting
Parties — by the outbreak of World War II this included almost all independent
States — "condemn recourse to war for the solution of international
controversies, and renounce it as an instrument of national policy [and] agree
that the settlement of or solution of all disputes or conflicts of whatever nature
or of whatever origin they may be, which may arise among them, shall never be
brought about except by peaceful means." 11
The sole sanction indicated in the Pact is denial of the benefits provided by
it to the offender. An appreciation of what this might mean is to be found in the
Articles of Interpretation adopted by the International Law Association at its
Budapest meeting in 1934. 12 Having stated the obvious, that a party resorting
to armed force to solve an international dispute "is guilty of a violation of the
Pact," as is any State assisting such a violator, the Articles go on to provide that
a victim of such a violation, as well as all other signatories, "may" — not
"shall" — deny the violator all the rights of a belligerent. Signatories are also
excused from any of the normal obligations attaching to neutrality, so that they
would be entitled to assist the victim with finances, supplies, and even armed
forces. Equally, the aggressor would not be entitled to receive recognition
either de facto or dejure of any territorial or other advantage ensuing from the
aggression. Finally, the aggressor would be liable to pay compensation for all
damage incurred by any party as a result of the breach.
It is noticeable that the Budapest Articles of Interpretation say nothing
about the criminality of an act of aggression in breach o( the Pact.
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The Law of War
Nevertheless, the Nuremberg Tribunal apparently found no difficulty in
asserting that "the solemn renunciation of war as an instrument of national
policy [in the Pact] necessarily involves the proposition that such a war is
illegal in international law; and that those who plan and wage such a war . . . are
committing a crime in so doing. . . . War [is] essentially an evil thing. Its
consequences are not confined to the belligerent states alone, but affect the
whole world. To initiate a war of aggression, therefore, is not only an
international crime; it is the supreme international crime differing only from
other war crimes in that it contains within itself the accumulated evil of the
whole." 13
This statement calls for comment. In the first place, the Tribunal has
ignored the fact that not every breach of an agreement — or even of
legislation — constitutes a crime. Second, the interpretation of the Pact in this
way is completely gratuitous and unnecessary. By Article 6 (a) of the London
Charter establishing the Tribunal, among the crimes against peace over which
the Tribunal is granted jurisdiction is "planning, initiation or waging of a war of
aggression, or a war in violation of international treaties. . . ." It follows,
therefore, that it is the constituent instrument of the Tribunal which has
rendered criminal a war of aggression or breach of the Pact, which is merely an
"international treaty." It was thus completely redundant for the Tribunal to go
into any detailed study of draft or other documents to ascertain whether such a
war was criminal or not.
Not even the Charter of the United Nations, at least not expressis verbis,
speaks of the criminality of war. Article 2, paragraphs 3 and 4, simply provide
that "all Members shall settle their international disputes by peaceful means
in such a manner that international peace and security, and justice, are not
endangered. [They] shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence
of any state, or in any other manner inconsistent with the Purposes of the
United Nations." The only clear sanction should these commitments be
ignored depends on the Security Council and its decision to invoke the
provisions in Chapter VII relating to a threat to the peace, a breach of the
peace, or an act of aggression. Should the Council authorize military action in
such circumstances, those complying with the decision are not in breach of
any legal requirement. Other than this, the only recourse to armed conflict
that is permitted under the Charter is by way of self-defense against an armed
attack. Other recourse to arms would constitute an act of aggression and a
crime in the light of the Nuremberg judgment, for the General Assembly has
affirmed the Principles of International Law Recognized by the Charter of the
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Nuremberg Tribunal, 14 and authorized the International Law Commission to
draw up a Statement of Principles Recognized in the Charter of the
Nuremberg Tribunal and in the Judgment of the Tribunal; 15 these Principles
are now generally regarded as constituting part of international customary
law.
Even if it is claimed that a resort to arms is in accordance with Article 51 of
the Charter, problems may arise as to whether the claim is justified and
self -defense legally resorted to. By Article 51, it may only occur in response to
an armed attack. However, the article describes the right as being "inherent,"
which raises the question whether it may be resorted to by way of preventive or
anticipatory action, 16 since it is hardly likely that the draftsmen of the Charter
intended a "victim" to wait until it was, for example, devastated by nuclear
attack before taking steps to defend itself. Moreover, since the right is
"inherent," 17 it cannot be presumed that the members of the United Nations
have less right to defend themselves than do non-members. War, other than
under these conditions, would constitute aggression and thus amount to an
international crime in accordance with the exposition of the law as given at
Nuremberg. If war is illegal and criminal, say the cynics, how can one speak of
the law of war? Is not this completely out of line with the normal rules
concerning criminal law? It is not usual to declare a particular act to be a crime
and then lay down rules as to how that crime is to be committed. Such an
approach, however, betrays a lack of historical knowledge and any appreciation
of the purpose o( the law of war.
Even in the Old Testament there are instances of the significance of
restraints on the conduct o{ war. During their conquest of Canaan, the
Israelites conducted many campaigns of total destruction, but this only
happened when the war in which they were engaged was undertaken at the
direct order of God and directed against heathens who had rejected Him. To
show mercy would be a sin against the Lord. 18 Even in such a war, however,
they were exhorted to have recourse to siege only if the city involved had
rejected an opportunity to surrender.
When thou comest nigh unto a city to fight against it, then proclaim peace
unto it. And ... if it make thee answer of peace, and open unto thee, then ... all
the people that is found therein shall be tributaries unto thee. And if it will make
no peace with thee, but will make war against thee, then thou shalt besiege it.
And when the Lord thy God hath delivered it into thine hands, thou shalt smite
every male thereof with the edge of the sword: But the women, and little ones,
and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take
unto thyself; and thou shalt eat the spoil of thine enemies. . . . When thou shalt
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The Law of War
besiege a city a long time in making war against it to take it, thou shalt not
destroy the trees thereof by wielding an axe against them; for thou mayest eat of
them, but thou shalt not cut them down; for is the tree of the field man, that it
shall be besieged of thee? Only the trees of which thou knowest that they are not
trees for food, them thou mayest destroy and cut down, that thou mayest build
bulwarks against the city that makes war with thee, until it fall. 19
It would appear, therefore, that ecological considerations were significant
even then, forbidding destruction of resources essential to the survival of man.
Maimonides, perhaps the greatest of Jewish Diaspora scholars, states that the
destruction of fruit trees for the mere purpose of afflicting the civilian
population is prohibited, and Rabbi Ishmael goes so far as to state that "not only
fruit trees but, by argument from minor to major, stores of fruit itself may not be
destroyed." 20
Not until Protocol I annexed to the Geneva Conventions of 1949 was
adopted in 1977 was a similar principle embodied in the international
black-letter law of armed conflict. Even then, "objects indispensable to the
civilian population" may not be attacked or destroyed, unless they "are used . . .
as sustenance solely for the members of [the adverse party's] forces ... or in
direct support of military action," but in the latter case care must be taken to
ensure that the civilian population is not left "with such inadequate food or
water as to cause its starvation or force its movement." 21
The Israelites were also enjoined to restrain themselves in their dealings
with enemy combatants. Thus, "rejoice not when thine enemy falleth, and let
not thine heart rejoice when he stumbleth; lest the Lord see it, and it
displeases Him, and He turn away His wrath from him." 22 Moreover, insofar
as prisoners of war are concerned, "if thine enemy be hungry, give him bread
to eat; and if he be thirsty, give him water to drink." This injunction goes so
far as to inspire the prophet Elisha to reply to the king's inquiry whether he
might kill his prisoners: "Thou shalt not smite them: wouldest thou smite
those whom thou hast taken captive with thy sword and with thy bow? Set
bread before them, that they may eat and drink and go to their master. And
he prepared great provision for them: and when they had eaten and drunk, he
sent them away and they went to their master." 24 Even in those instances
when the Torah or the Prophets indicated that extreme action be taken
against an enemy,
the rabbis softened the impact of much of the old law through reinterpretation or
imaginative explanation. Due to this it seems that the Israelites were indeed a
"merciful" people when compared with their neighbors, such as the Assyrians.
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Although, as in any case, exceptions and violations to regulations occurred, on
the whole, the Israelite warriors conducted themselves in a disciplined, restricted
manner in accordance with rules and regulations derived from divine
inspiration. 24
However, breaches of these irijunctions were, for the main part at least, only
subject to divine punishment.
The Israelites were not alone among the ancients whose conduct of war was
under restraints. Sun Tzu, in his The Art of War, is one of the most ancient
commentators on warfare, and in his view, "Generally in war the best policy is
to take a state intact; to ruin it is inferior to this. To capture the enemy's army is
better than to destroy it; to take intact a battalion, a company or a five -man
squad is better than to destroy them. . . . To subdue the enemy without fighting
is the acme of skill. . . . The worst policy is to attack cities. Attack cities only
when there is no alternative." 25 Even as early as the seventeenth century B.C.,
the Chinese were applying what may only be described as principles of chivalry
when engaged in conflict, it being "deemed unchivalrous ... [to take]
advantage of a fleeing enemy who was having trouble with his chariot ... [or
to] attack an enemy state . . . when it was divided by internal troubles." 26
Similarly, some measures of humanitarianism are to be found in both the
Ramayana 11 and the Mahabharata, 18 postulating a series of principles regulating
conduct in war, many of which have only recently been accepted as part of the
modern law of war: "When he fights his foes in battle, let him not strike with
weapons concealed in wood, nor with such as are barbed, poisoned, or the
points of which are blazing with fire. 29 Neither poisoned nor barbed weapons
should be used. These are weapons of the wicked." 30 Foretelling the modern
rule relating to proportionality, 31 as well as the ideological — and
unrealistic — view of those who assert that sophisticated weapons should not be
used against unsophisticated peoples,
A car warrior should fight a car warrior. One on horse should fight one on horse.
Elephant riders must fight with elephant riders, as one on foot fights a foot
soldier. When the antagonist has fallen into distress he should not be struck:
brave warriors do not shoot at one whose arrows are exhausted. No one should
strike another that is retreating. 32 . . . [L]et him remember the duty of honourable
warriors; do not kill a man when he is down, even a wicked enemy, if he seeks
shelter, should not be slain.
The Sanskrit writers, in their treatment of noncombatants, remind us of the
remark attributed by Shakespeare's Henry V to Fluellen at Agincourt in 1415:
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The Law of War
"Kill the boys and the luggage! Tis expressly against the law of arms: 'tis as
arrant a piece of knavery as can be offer'd." 33 These early epics warn us that:
[C]ar-drivers, men engaged in the transport of weapons, . . . should never be
slain. No one should slay him who goes out to procure forage or fodder, camp
followers or those that do menial service. No one should kill him that is skilled in
a special art. He is no son of the Vishni race who slayeth a woman, a boy or an old
man. Let him not strike one who has been grievously wounded. A wounded
opponent shall either be sent to his own home, or if brought to the victor's
quarters, have his wounds attended to, and when cured he shall be set at liberty.
This is eternal duty. 34 Night slaughter is horrible and infamous. With death our
enmity has terminated.
Thus, any desecration of a corpse, such as taking of ears or other mementos,
was forbidden. Finally, as to the treatment of occupied territory and its
inhabitants, "Customs, laws and family usages which obtain in a country should
be preserved when that country has been acquired. Having conquered the
country of his (ot, let him not abolish or disregard the laws of that country. A
king should never do such injury to his foe as would rankle in the latter's
heart." 35
It becomes evident from these examples that many of the rules of the
ancients go further than what is to be found in either the Hague or the Geneva
law. 36 They indicate that the ancients considered war an unfortunate
occurrence, with the ensuing damage to be kept to a minimum and every effort
made to secure a peaceful and fruitful future for both the victor and the
vanquished. This interpretation accords with that of Gibbon commenting on
the behaviour of the Scythians in the fifth century,
In all their invasions of the civilized empires of the South, the Scythian
shepherds have been uniformly actuated by a savage and destructive spirit. The
laws of war that restrain the exercise of national rapine and murder, are founded
on two principles of substantial interest: the knowledge of the permanent
benefits which may be obtained by a moderate use of conquest; and a just
apprehension lest the desolation which we inflict on the enemy's country may be
retaliated on our own. But these considerations of hope and fear are almost
unknown in the pastoral state of nations. 37
One is sometimes caused to wonder whether they are any more known or
applied in industrial States!
Long before the period to which Gibbon was referring, there was some
regulation of what was allowed during war. This becomes clear if one looks to
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the practice of ancient Greece and Rome, in which urban centers in the form of
cities, and city-states were well established. A leading commentator has said,
The rule and principles of war were considered by both Hellas and Rome to be
applicable only to civilized sovereign States properly organized, and enjoying a
regular constitution; and not conglomerations of individuals living together in
an irregular and precarious association. Rome did not regard as being within
the comity of nations such fortuitous gatherings of people, but only those who
were organized on a civilized basis, and governed with a view to the general
good, by a properly constructed system of law. . . . Hence barbarians, savage
tribes, bands of robbers and pirates, and the like were debarred from the
benefits and relaxations established by international law and custom. . . . [A]s
to the general practice of war in Hellas[,l we find remarkable oscillations of
wartime policy. Brutal treatment and noble generous conduct are manifested
at the same epoch, in the same war, and apparently under similar
circumstances. At times we hear of proceedings which testify to the intellectual
and artistic temperament of the Greeks; at other times, we read narratives
which emphasise the fundamental cruelty and disregard of human claims
prevalent amongst the ancient races when at war with each other. In Homer . . .
hostilities for the most part assumed the form of indiscriminate brigandage, and
were but rarely conducted with a view to achieving regular conquests, and
extending the territory of the victorious community. Extermination rather
than subjection of the enemy was the usual practice. . . . Sometimes prisoners
were sacrificed to the gods, corpses mutilated and mercy refused to children,
and to the old and sickly. On the other hand, acts of mercy and nobility were
frequent. . . . The adoption of certain cowardly, inhuman practices, such as, for
example, the use of poisoned weapons, was condemned. . . . J8 In reference to
the conduct of war in Greece, it is important to remember that it was between
small States, whose subjects were to an extraordinary degree animated by
patriotism and devotion to their mother-country, that every individual was a
soldier-politician who saw his home, his life, his family, his gods, at stake, and,
finally, that he regarded each and every subject of the opposing States as his
personal adversary. . . . 39 [Nevertheless,] temples, and priests, and embassies
were considered inviolable. . . . Mercy was shown to . . . helpless captives.
Prisoners were ransomed and exchanged. Safe-conducts were granted and
respected. Truces and armistices were established and, for the most part,
faithfully observed. . . . Buriai of dead was permitted; and graves were
unmolested. It was considered wrong and impious to cut off or poison the
enemy's water supply, or to make use of poisoned weapons. Treacherous
stratagems of every description were condemned as being contrary to civilized
warfare. And ... it is essential to emphasize that the non-existence of the law
and universally accepted custom relating to them is not necessarily proved
when we point here and there to conduct of a contrary nature. 40
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The Law of War
This latter point is not always sufficiently acknowledged in our own time.
The same commentator goes on to point out that by the time of the Roman
empire the nature of the State had changed with Rome a centralized authority.
Now, the practices in war
varied according as their wars were commenced to exact vengeance for gross
violations of international law, or for deliberate acts of treachery. Their warlike
usages varied also according as their adversaries were regular enemies ... or
uncivilized barbarians 41 and bands of pirates and marauders. . . . The Roman
conduct [under Germanicus] far transcended in its civilized and humane
character that of the German leader, Arminius, who is reported [by Tacitus 42 ] to
have burnt to death and otherwise barbarously 43 slain the centurions and
tribunes of the Varian legions, and nailed their skulls to trees. Undoubtedly, the
belligerent operations of Rome, from the point of view of introducing various
mitigations in the field, and adopting a milder policy after victory, 44 are distinctly
of a progressive character. They were more regular and disciplined than those of
any other ancient nation. They did not as a rule degenerate into indiscriminate
slaughter and unrestrained devastation. The ins belli imposed restrictions on
barbarism, and condemned all acts of treachery. . . . [Livy tells us 45 ] there were
laws of war as well as peace, and the Romans had learnt to put them into practice
not less justly than bravely. . . . The Romans [says Cicero 46 ] refuse to
countenance a criminal attempt made on the life of even a foreign aggressor. 47
In so far as Islam is concerned, the Caliph Abu Bakr commanded his troops,
"[L]et there be no perfidy, no falsehood in your treaties with the enemy, be
faithful to all things, proving yourselves upright and noble and maintaining
your word and promises truly." 48 The ninth century Islamic statement on the
law of nations bans the killing of women, children, the aged, the blind, the
crippled and helpless insane. 49 Moreover, while fighting was in progress
between the dar aUlslam (the territory of Islam) and the dar al-harb (the rest of
the world, also known as the "territory of war"), "Muslims were under legal
obligations to respect the rights of non-Muslims, both combatants and
civilians." Booty did not belong to the captor but was to be shared according to
set rules. "The prisoner of war should not be killed, but he may be ransomed or
set free by grace," although if it would be advantageous to the Muslims,
non-Muslim prisoners could be killed unless they converted, when they would
be regarded as booty. 50
Once we come to the age of chivalry, we find the role of the Church
significant, particularly as it frequently reflected the desires of the orders of
knighthood. Thus, the condemnation of the use of the crossbow and the arc by
the Second Lateran Council in 1139 coincided with the views of the knightly
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orders who fought hand-to-hand and considered such weapons disgraceful
since they could be used from a distance by an unseen foe, including villians,
who could strike without the risk of being struck himself. 51 The axe, mace,
halberd, ball-and-chain, military fork, and a variety of lances used by the
knights for close combat and dismounting an opponent were merely up-to-date
variants of the striking weapons of the ancients, which had been "confined to
arm, foot, or mouth-propelled instruments [as well as] war-hammers,
battle-axes, and swords; thrusting spears; and missile weapons, such as the
hurled spear, or javelin, the arrow propelled by arm- or foot-drawn bow, or the
blow-pipe. The striking edge or point of these weapons [had been] of hard
wood, stone, bone, or metal." 52
As iron-clad warriors 53 disappeared, their specialized weapons fell into
desuetude; they are now considered illegal. The process of condemnation and
potential rejection was assisted by the Church, anathemizing such weapons as
darts and catapults "in order to reduce as far as possible the engines of
destruction and death." 54 Despite the condemnation of weapons causing
numerous deaths, gunpowder was soon in common use, although in 1439,
"when the army of Bologna, using a new handgun, killed a number of
plate-armoured Venetians, feeling ran so high at this disregard for the game of
war, that the victorious Venetians massacred all prisoners who had stooped so
low as to use this 'cruel and cowardly innovation,' gunpowder. It would, if
unchecked, they said, make fighting a positively DANGEROUS profession." 55
Such disregard of the rules led Belli to comment a century later that "today
regard is so far lacking for this [Church] rule that firearms of a thousand kinds
are the most common and popular implements of war, as if too few avenues of
death had been discovered in the centuries, had not the generations of our
fathers, rivaling God with his lightning, invented this means whereby, even at a
single discharge, men are sent to perdition by the hundreds." 56
The "law of chivalry" was nothing but a customary code of chivalrous
conduct recognized by the feudal knights as controlling their affairs. 57 This was
enforced by arbitrators specially appointed and even by Courts of Chivalry. 58
As early as 1307, such courts were trying breaches of parole, 59 considered a
major disregard of the "law of arms" — a system so well recognized that when in
1370 at the siege of Limoges the English commander issued orders forbidding
quarter, three captured French knights appealed to John of Gaunt and the Earl
of Cambridge, "My Lords we are yours: you have vanquished us. Act therefore
to the law of arms." Their lives were spared, and they were treated as prisoners
who could, of course, be ransomed. 60 The principles of the law of arms were
sufficiently well recognized by the time of Elizabeth that, as has already been
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The Law of War
pointed out, Shakespeare could make specific reference to them when writing
of Henry V's conduct at Agincourt. 61
By the middle of the fifteenth century, the Constable of France was trying a
variety ofecorcheur captains for war crimes. 62 Perhaps more significant was the
1474 trial by a tribunal made up of representatives of the Hanseatic cities of
Peter of Hagenbach for administering occupied territory in a manner "contrary
to the laws o( God and of man." His plea that he had been carrying out the
orders of his lord was rejected, and he was executed. 63
The rules of chivalry did not apply to the ordinary foot soldier, whose
conduct was regulated by national military codes giving commanders the
"rights of justice" over miscreants. Thus, the 1385 code of Richard II o{
England forbade pillage of the church, victuals, provisions, or forage; also,
among other things it provided for parole by prisoners, who were not to be
considered property of their captors, but of the king. 64 By the fifteenth century,
when nearly all men-at-arms were included in official musters, subject to
disciplinary codes of this kind, enforcement of the law became easier. By the
seventeenth century most of the countries of Europe had such codes forbidding
violence against women, marauding of the countryside, individual acts against
the enemy unless authorized by a superior, private taking or keeping of booty,
or the private detention of any prisoner. 65 Of these codes it has been said that
together with the rules of international law, they constitute "Ie meilleur frein
pratique pour imposer aux armees le respect d'un modus legitimus de mener les
»66
guerres.
As to the position of women, the French knights had been adamant in
protecting the modesty of those found in surrendered cities, and Coligny made
violence against them punishable by death. 67 By the beginning of the
seventeenth century the honor of women was so well established that Gentili
could state that "to violate the honour of women will always be held to be
unjust," quoting as evidence the view of Alexander, "I am not in the habit of
warring with prisoners and women." 68 This would suggest that the rape of
women has from earliest times been considered a war crime. Moreover, in the
Lieber Instructions for the Government of the Armies of the United States in
the Field, 1863, which formed the basis of most subsequent military codes,
express provision is made, with respect to providing protection of inhabitants
in occupied territories, for the protection of women. 69 In 1974, the General
Assembly Declaration on the Protection oi Women and Children in
Emergency and Armed Conflict provided that "all forms of repression and
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inhuman treatment of women . . . committed by belligerents in the course of
military operations or in occupied territories shall be considered criminal." 70
More recently, 1977 Protocol I annexed to the 1949 Geneva Conventions
expressly states, "Women shall be the object of special respect and shall be
protected in particular against rape, forced prostitution and any other form o{
indecent assault." 71 This series of provisions leads one to question the integrity
and purpose of those feminists who now seek to have rape specifically declared
a war crime, particularly since it has been charged as such in many of the
indictments issued by the Ad Hoc Tribunal for the former Yugoslavia.
In earlier days, combatants were not over-concerned with the fate of the
wounded, particularly those belonging to an enemy, and this was especially so
during the religious campaigns of the Crusades. Nevertheless, by the twelfth
century the knights of the Order of St. John had established a hospital in
Jerusalem for the care of the sick and injured, and by the sixteenth century they
had established themselves as the Sovereign Order of Malta with the same
purpose in mind. About the same time, writers were beginning to assert that
doctors, who were often in clerical orders, enjoyed a special immunity. In the
early part of the fourteenth century Bartolus maintained they were free from
seizure, and Belli used this as a basis for stating that during war, the "persons of
doctors may not be seized, and they must not be haled to court or otherwise
harassed." 7 By the time of Louis XIV, attention had been directed to providing
for the care of the wounded; in a 1708 decree a permanent medical service was
established u d la suite des armees et dans les places de guerre" 13 During the siege of
Metz in 1552-1553 Francois de Guise summoned the French surgeon
Ambroise Para "to succour the abandoned wounded soldiers oi the enemy and
to make arrangements for their transport back to their army" 74 — a practice not
embodied into treaty law until three centuries later. 75
During later conflicts, a variety of reciprocal arrangements were made for
the care of the wounded, of which only one or two need be mentioned.
[The] convention made in 1743, between Lord Stair on behalf of the Pragmatic
army and the Marshal Noailles for the French during the Dettingen campaign
bound both sides to treat hospitals and wounded with consideration. Noailles,
when he felt that his operations might cause alarm to the inmates of the hospitals
at Techenheim, went so far as to send word that they should rest tranquil as they
would not be disturbed. A fuller and more highly developed type of agreement
was signed at L'Ecluse in 1759 by the Marshal de Baril, who commanded the
French, and Major-General Conway, the British general officer commanding.
The hospital staff, chaplains, doctors, surgeons and apothecaries were not ... to
be taken prisoners; and if they should happen to be apprehended within the lines
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of the enemy, they were to be sent back immediately. The wounded of the enemy
who should fall into the hands of their opponents were to be cared for, and their
food and medicine should in due course be paid for. They were not to be made
prisoner and might stay in hospital safely under guard. . . . Peyrilhe in 1780
proposed international recognition of the principle that the wounded should not
be made prisoners of war and should not enter into the balance of exchanges. 76
It was not, however, until after Dunant's Souvenir ofSolferino in 1862 that this
form oiad hoc arrangement received permanence and international recognition
by way of the establishment of the International Committee of the Red Cross. 77
The Middle Ages saw other customs developing which have ceased to be of
topical importance, although in some instances they have been responsible for
current practices. During the Hundred Years War it was possible to distinguish
between guerre mortelle } war to the death; bellum hostile, a war between
Christian princes in which prisoners could ransom themselves; guerre
guerriable, fought in accordance with the feudal rules of chivalry; and the truce,
which indicated a temporary cessation of hostilities during which the wounded
and dead might be collected. Any resumption of actual fighting following a
truce was considered a continuation of an ongoing conflict rather than
commencement of a new one — an attitude which applies at present with
regard to the relations between Israel and those of her Arab neighbors with
whom no peace treaty has yet been signed. Each category of conflict had its
own rules, but they were rules of honor rather than of law or humanitarianism.
Unless it was a conflict in which no quarter was to be given — and this was
indicated by raising a red pennant 78 — prisoners and others enjoying immunity,
such as heralds, carried a white wand or even a white paper in their
head -dress — is this the origin of the white flag? — and were frequently allowed
freedom of movement under safe-conducts or were employed as messengers
between the contending forces. 79
In order to appreciate the reasons for and nature of the law of war, it is not
enough just to look to the practices of the Middle Ages. Reference must also be
made to the writings of the classical writers on international law, for to the
extent that these were consistent or expressed commonly held views prevalent
at the time, their writings constitute evidence of customary law. Thus, in words
which are almost modern, Gentili wrote,
[I] n war . . . victory is sought in no prescribed fashion. . . . Our only precaution
must be not to allow every kind of craft and every kind of cunning device; for evil
is not lawful, but an enemy should be dealt with according to law. ... In dealing
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with a just and lawful enemy we have the whole fetial law and many other laws in
common. . . . Necessity does not oblige us to violate the rights of our adversaries .
. . [but] the laws of war are not observed toward one who does not observe
them." 80
This latter statement is of course not valid today, at least insofar as the
Geneva principles are concerned.
Grotius, commonly (though wrongly) described as "the father of
international law," is somewhat self-contradictory. First, he states that "by the
Law of Nations any Thing done against an Enemy is lawful ... It is lawful for an
Enemy to hurt another both in Person and Goods . . . [and for] both sides to do
so without Distinction." 81 However, later, when discussing Moderation
concerning the Right of Killing Men in a Just War, he states that "there are
certain Duties to be observed even toward those who have wronged us" 82 and
calls for avoidance of useless fighting, which is "wholly repugnant to the Duty
of a Christian, and Humanity itself. Therefore all Magistrates ought strictly to
forbid these Things, for they must render an account for the unnecessary
shedding of Blood to him, whose Viceregents they are." 83
Having pointed out that the man in the field is forbidden from acting as if
the conflict were a private affair and so is neither to keep captured property for
himself nor commit warlike acts after a retreat or an armistice, 84 he continues:
It is not enough that we do nothing against the Rules of rigorous Justice, properly
so called; we must also take Care that we offend not against charity, especially
Christian Charity. Now this may happen sometimes; when, for Instance, it
appears that such a plundering doth not so much hurt the [enemy] State, or the
King, or those who are culpable themselves, but rather the Innocent, whom it
may render so extremely miserable. . . . But farther, if the taking of this Booty
neither contributes to the finishing of the War, nor considerably weaken the
Enemy, the Gain arising to himself only from the Unhappiness of the Times,
would be highly unbecoming an honest Man, much more a Christian. . . . Yet if a
Soldier, or any other Person, even in a just War, shall burn the Enemy's House,
without any Command, and besides when there is no Necessity, or just Cause, in
the Opinion of the Divines he stands obliged to make Satisfaction for those
Damages. I have with Reason added ... if there be not a just Cause, for if there
be, he may perhaps be answerable to his own State, whose orders he hath
transgressed, but not to his Enemy, to whom he hath done no wrong. 85
Seeking a perspective which largely reflects what States actually did, we
might cite the views of Vattel.
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The Law of War
Since the object of a just war is to overcome injustice and violence, and to use
force upon one who is deaf to the voice of reason, a sovereign has the right to do
to his enemy whatever is necessary to weaken him and disable him from
maintaining his unjust position; and the sovereign may choose the most
efficacious and appropriate means to accomplish that object, provided those
means be not essentially unlawful, and consequently forbidden by the Law of
Nations. A lawful end confers a right only to those means which are necessary to attain
that end. Whatever is done in excess of such measures is contrary to the natural law,
and must be condemned as evil before the tribunal of conscience. . . . [ A]s it is very
difficult sometimes to form a just estimate of what the actual situation demands,
and, moreover, as it is for each Nation to determine what its particular
circumstances warrant its doing, it becomes absolutely necessary that Nations
should mutually conform to certain general rules on this subject. Thus, when it is clear
and well recognized that such a measure, such an act of hostility, is, in general,
necessary for overcoming the resistance of the enemy and attaining the object of
lawful war, the measure, viewed thus in the abstract, is regarded by the Law of
Nations as lawful and proper in war, although the belligerent who would make use
of it without necessity, when less severe measures would have answered his purpose,
would not be guiltless before God and his conscience. This is what constitutes the
difference between what is just, proper, and irreprehensible in war, and what is merely
permissible and may be done by Nations with impunity. 86
Gentili, too, wrote of restraints in war — [it is] "only when we cannot
overcome their resistance and bring them to terms by less severe means, that
we are justified in taking away [the] lives" of the enemy. 87 Equally condemned
were denial of quarter, reprisals against prisoners, 88 violence against women,
children, the aged and the sick, ecclesiastics, men of letters, husbandmen, and,
generally, all unarmed persons. Assassination, the use o{ poison and poisoned
weapons, as well as the poisoning of wells, streams and springs were also beyond
the pale. 89
0{ all classical writers, Vattel was the most concerned in seeking to limit
war's horrors:
Necessity alone justifies Nations in going to war; and they should all refrain from,
and as a matter of duty oppose, whatever tends to render war more disastrous. ... Ail
acts of hostility which injure the enemy without necessity, or which do not tend to
procure victory, are unjustifiable and as such condemned by the natural law. ... As
between Nation and Nation, we must lay down general rules, independent of
circumstances and of certain and easy application. Now, we can only arrive at
such rules by considering acts of hostility in the abstract and in their essential
character. Hence, . . . the voluntary Law of Nations limits itself to forbidding acts that
are essentially unlawful and obnoxious, such as poisoning, assassination, treason, the
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massacre of an enemy who has surrendered and from whom there is nothing to fear, . . .
[and] condemns every act of hostility which . . . contributes nothing to the success of our
arms, and neither increases our strength nor weakens the enemy. On the other hand,
it permits or tolerates every act which in its essential nature is adapted to
attaining the end of the war; and it does not stop to consider whether the act was
unnecessary, useless or superfluous in a given case unless there is the clearest
evidence that an exception should have been made in that instance; for where the
evidence is clear freedom of judgment cannot be exercised. Thus it is not, generally
speaking, contrary to the laws of war to plunder and lay waste a country. But if an
enemy of greatly superior forces should treat in this manner a town or province
which he might easily hold possession of as a means of obtaining just and
advantageous terms of peace, he would be universally accused of waging war in a
barbarous and uncontrolled manner. The deliberate destruction of public
monuments, temples, tombs, statues, pictures, etc., is, therefore, absolutely
condemned . . . , as being under no circumstances conducive to the lawful object
of war. The pillage and destruction of towns, the devastation of the open country
by fire and sword, are acts no less to be abhorred and condemned when they are
committed without evident necessity or urgent reasons. 90
It is of interest to note that it was not until the adoption of Protocol I in
1977 91 that impedimenta of the world's cultural heritage 92 or objects
indispensable to the survival of the civilian population, such as foodstuffs,
agricultural areas, crops, drinking water installations and the like, came under
treaty protection.
The American Civil War produced the first modern codification of
regulations for use during conflict, with the promulgation by President
Abraham Lincoln of the Instructions for the Government of Armies of the United
States in the Field, 93 which had been prepared by Professor Francis Lieber of
Columbia. Lieber's motivation in preparing this draft may be seen from his
Political Ethics: "War by no means absolves us from all obligations toward the enemy.
. . . They result in part from the object of war, in part from the fact that the
belligerents are human beings, that the declaration of war is, among civilized
nations, always made upon tacit acknowledgment of certain uses and obligations." 9 *
In accordance with the Code:
[Military necessity does not admit of cruelty — that is, the infliction of suffering
for the sake of suffering or for revenge — . . . the unarmed person is to be spared in
person, property, and honor as much as the exigencies of war will admit. . . .
[Protection of the inoffensive citizen of the hostile country is the rule. . . . The
United States acknowledge [s] and protect|s], in hostile country occupied by
them, religion and morality; strictly private property; the persons of the
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The Law of War
inhabitants, especially those of women; and the sacredness of domestic relations.
Offenses in the country shall be rigorously punished. . . . All wanton violence
committed against persons in the invaded country[;] ... all robbery ... or
sacking, even after taking a place by main force, all rape, wounding, maiming or
killing of such inhabitants, are prohibited under the penalty of death. . . . Crimes
punishable by all penal codes, such as arson, murder, assaults, highway robbery,
theft, burglary, fraud, forgery and rape, if committed by an American soldier in a
hostile country against its inhabitants, are not only punishable as at home, but in
all cases in which death is not inflicted, the severer punishment shall be
preferred. 95
The Code also recognized that prisoners were to be protected and that it was
forbidden to deny quarter. Further, the rights of chaplains and medical
personnel were confirmed, as was the ban on any discrimination in the
treatment of enemy personnel. It also forbade the use of enemy colors, which
would now be considered as perfidy. While aimed at the conduct of American
forces, the Code went further, acknowledging the right to punish what would
today be described as war crimes: "A prisoner of war remains answerable for his
crimes committed against the captor's army or people, committed before he
was captured, and for which he has not been punished by his own
authorities." 96 As to the problem of members of a force of an enemy State
considered to be engaged in an "unjust" war,
[t]he law of nations . . . admits of no ruks or laws different from those of regular
warfare, regarding the treatment of prisoners of war, although they may belong to
the army of a government which the captor may consider as a wanton and unjust
assailant. 97 Modern wars are not internecine wars, in which the killing of the
enemy is the object. 98 The destruction of the enemy in a modern war, and,
indeed, modern war itself, are means to obtain the object of the belligerent which
lies beyond the war. Unnecessary or revengeful destruction of life is not lawful."
The rules enunciated in the Lieber Code were so consistent with current
military practice that similar codes or manuals were soon issued by Prussia, the
Netherlands, France, Russia, Serbia, Argentina, Great Britain, and Spain. 100
But there was no internationally agreed document setting out the rules and
principles. However, to the extent that they and the writings of acknowledged
international law authorities express agreement, they may be regarded as opinio
juris ac necessitatis, thus constituting the customary law of armed conflict.
Insofar as they have not been overruled by treaty or expressly rejected by a
State, especially a significant military power, they are as obligatory as any other
rules of international law. 101
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International efforts aimed at controlling activities in conflict had already
begun in the middle of the nineteenth century. The Declaration of Paris of
1856 102 was concerned with some selected aspects of maritime warfare, but
more significant was the 1864 Geneva Convention for the Amelioration of the
Wounded in Armies in the Field. 103 Adopted only one year after the
establishment of the International Committee of the Red Cross, it recognized
the immunity of the symbol and those wearing it. This Convention initiated a
series of Geneva Conventions (1906, 1929, and 1949, culminating in the
Protocols of 1977) directed at the treatment and protection of those hors de
combat — the wounded on land or at sea, prisoners of war, civilians and other
noncombatants — and known as the Geneva Law or international
humanitarian law.
As to the methods of warfare, the first international effort at control was the
1868 Declaration of St. Petersburg directed against the use of lightweight
explosive bullets, 104 and it is worth noting the motive for such ban, as expressed
in the Preamble:
[HJaving by common agreement fixed the technical limits at which the
necessities of war ought to yield to the requirements of humanity . . . [the parties]
declare . . . That the progress of civilization should have the effect of alleviating
as much as possible the calamities of war; That the only legitimate object which
States should endeavour to accomplish during war is to weaken the military
forces of the enemy; That for this purpose it is sufficient to disable the greatest
possible number of men; That this object would be exceeded by the employment
of arms which uselessly aggravate the sufferings of disabled men, or render their
death inevitable; That the employment of such arms would, therefore, be
contrary to the laws of humanity. 105
With these lofty motives in mind, the Declaration banned their use on a
reciprocal basis among those States which adhered to the Declaration. In fact,
only nineteen European States did so.
Even fewer States attended the 1874 Brussels Conference that drew up a
Project of an International Declaration Concerning the Laws and Customs of
War. This postulated principles concerning the administration of occupied
territory, the distinction between combatants and noncombatants, the
conduct of sieges and bombardments, as well as the treatment of spies,
prisoners of war, and the sick and wounded. While the Project never came into
force, we should not overlook the reiteration of the preambular terms of St.
Petersburg, nor the even more significant statement that:
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The Law of War
by revising the laws and general usages of war, whether with the object of
defining them with greater precision, or with the view of laying down, by a
common agreement, certain limits which will restrain, as far as possible, the
severities of war, [war] . . . would involve less suffering, would be less liable to those
aggravations produced by uncertainty, unforeseen events, and the passions excited by
the struggle; it would tend more surely to that which should be its final objective, viz. , the
re-establishment of good relations, and a more solid and lasting peace between the
belligerent States. 106
The Project embodied a principle which is to be found in every treaty since.
By Article 12,
[T]he laws of war do not recognize in belligerents an unlimited power in the
adoption of means of injuring the enemy . . . [and, Article 13, according to this
principle [the following acts] are especially forbidden: 107
(a) Employment of poison or poisoned weapons;
(b) Murder by treachery of individuals belonging to the hostile nation or army;
(c) Murder of an enemy who, having laid down his arms or having no longer
means of defence, has surrendered at discretion;
(d) The declaration that no quarter will be given;
(e) The employment of arms, projectiles or missiles calculated to cause
unnecessary suffering [now understood objectively as relating to what is
necessary for the achieving of an operation rather than subjectively as measured
by the individual on whom the suffering has been inflicted 108 ], as well as the use
of projectiles prohibited by the Declaration of St. Petersburg of 1868;
(f) Making improper use of a flag of truce, of the national flag or of the military
insignia and uniform of the enemy, as well as the distinctive badges of the
Geneva Convention;
(g) Any destruction or seizure of the enemy's property that is not imperatively
demanded by the necessity of war.
Largely building upon the Brussels Project, at its 1880 meeting the Institute
of International Law drew up the Oxford Manual on the Laws of War. Once
again, what is of major significance and reason for the law of war is the Preface
to the Manual:
War holds a great place in history, and it is not to be supposed that men will
soon give it up — in spite of the protests which it arouses and the horror which it
inspires — because it appears to be the only possible issue of disputes which
threaten the existence of States, their liberty, their vital interests. But the
gradual improvement in customs should be reflected in the method of
conducting war. It is worthy of civilized nations "to restrain the destructive force
of war, while recognizing its inevitable necessities." The problem is not easy of
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solution; however, some points have already been solved, and very recently the
draft Declaration of Brussels has been a solemn pronouncement of good
intentions of governments in this connection. It may be said that independently
of the international laws existing on this subject, there are today certain principles
of justice which guide the public conscience, which are manifested even by general
customs, but which it would be well to fix and make obligatory. . . . The Institute does
not propose an international treaty, which it might perhaps be premature or at
least very difficult to obtain; but it believes it is fulfilling a duty in offering to the
governments a Manual suitable as the basis for national legislation in each State, and
in accord with the progress of juridical science and the needs of civilized armies. Rash
and extreme rules will not be found therein. The Institute has not sought
innovations in drawing up the Manual; it has contented itself with stating clearly
and codifying the accepted ideas of our age so far as this has appeared allowable and
practicable. By so doing, it believes it is rendering service to military men themselves. In
fact so long as the demands of opinion remain indeterminate, belligerents are
exposed to painful uncertainty and to endless accusations. A positive set of rules . . .
if they are judicious, serves the interests of belligerents and is far from hindering them,
since by preventing the unchaining of passions and savage instincts — which battle
always awakens, as much as it awakens courage and manly virtue — it strengthens
the discipline which is the strength of armies; it also ennobles their patriotic mission in
the eyes of the soldiers by keeping them within the limits of respect due to the rights of
humanity. But in order to attain this end it is not sufficient for sovereigns to
promulgate new laws. It is essential, too, that they make these laws known to all
people, 50 that when a war is declared, the men called to take up arms to defend the
causes of the belligerent States, may be thoroughly impregnated with the special rights
and duties attached to the execution of such a command} 09
Only a few of the Manual's provisions need be mentioned, and that because
they have, in almost identical wording, been embodied in the relevant treaties
beginning with the Hague Conference of 1899.
The state of war does not admit of acts of violence, save between the armed
forces of belligerent States. . . . Every belligerent armed force is bound to conform to
the laws of war. The laws of war do not recognize in belligerents an unlimited liberty as
to the means of injuring the enemy. They are to abstain especially from all needless
severity. . . . No invaded territory is regarded as conquered until the end of the
war; until that time the occupant exercises . . . only de facto power, essentially
provisional in character. . . . It is forbidden to maltreat inoffensive populations . . .
or employ arms, projectiles, or materials of any kind calculated to cause
superfluous suffering or to aggravate wounds ... [or] to injure or kill an enemy who
has surrendered at discretion or is disabled, and to declare in advance that
quarter will not be given, even by those who do not ask it for themselves. 110
Wounded and sick soldiers should be brought in and cared for, to whatever
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nation they belong. ... It is forbidden to rob or mutilate the dead lying on the
field of battle. ... It is forbidden to attack and to bombard undefended places.
The commander of an attacking force, save in cases of open assault, shall, before
undertaking a bombardment, make every due effort to give notice thereof to the
local authorities. 111 . . . Ambulances and hospitals for the use of armies are
recognized as neutral and should, as such, be protected and respected by
belligerents, so long as any sick or wounded, are therein. 111 . . . The occupant [of
enemy territory] should maintain the laws which were in force in the country in
time of peace, and should not modify, suspend, or replace them, unless necessary
[this proviso would permit amendment if the said laws ran counter to the
occupant's concept of moral conduct, so long as that was in conformity with
accepted concepts of justice). . . . The population of the invaded district cannot
be compelled to swear allegiance to the hostile Power. . . . Family honour and
rights, the lives of individuals, as well as their religious convictions and practice,
must be respected [again, this would not oblige an occupant to recognize
practices repulsive to its own way of life] .... Prisoners of war are in the power of
the hostile government, but not in that of the individuals or corps who captured
them. They are subject to the laws and regulations in force in the army of the
enemy. They must be humanely treated — Arms maybe used, after summoning,
against a prisoner attempting to escape Prisoners cannot be compelled in any
manner to take any part whatever in the operation of war, 113 nor compelled to
give information about their country or their army. Offenders against the laws of
war are liable to the punishment specified in the penal law. UA
The penal law cited in the final quoted sentence would be the national law,
no provision for trial by any international tribunal having been made. Nor was
any obligation imposed requiring a national force to hand an accused offender
to the enemy so that he could be tried by an enemy tribunal.
Perhaps at this point it would be in order to comment upon the views as to
the law of war o{ one or two of the major players in international armed
conflict. According to Great Britain,
[t]he laws of war are the rules which govern the conduct of war — rules with
which, according to international law, belligerents and neutrals are bound to
comply. They are binding not only upon States as such but also upon their nationals
and, in particular, upon the individual members of the armed forces. In antiquity, and
in the earlier part of the Middle Ages, no rules of warfare existed. 115 During the
latter part of the Middle Ages, however, the influence of Christianity as well as
that of chivalry made itself felt, and gradually the practice of warfare became less
savage. The present laws of war are the result of a slow growth. Isolated milder
practices became in the course of time usages, which at first were not
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accompanied by a sense of legal obligation, but which by custom (i.e., constant
practice accepted as law) and by treaties, gradually developed into legal rules. . . .
The laws of war consist, therefore, partly of customary rules which have grown up in
practice, and pardy of written rules, that is to say, rules which have been expressly
agreed upon by governments in international treaties and conventions. . . . The
development of the law of war has been determined by three principles: first, the
principle that a belligerent is justified in applying compulsion and force of any kind,
to the extent necessary for the realisation of the purpose of war, that is, the
complete submission of the enemy at the earliest possible moment with the least
possible expenditure of men, resources and money; secondly, the principle of
humanity, according to which kinds and degrees of violence which are not
necessary for the purpose of war are not permitted to a belligerent; and, thirdly,
the principle of chivalry, which demands a certain amount of fairness in offence
and defence, and a certain mutual respect between the opposing forces. The law
of war is inspired by the desire of all civilised nations to reduce the evils of war by:
(a) protecting both combatants and non-combatants from unnecessary suffering;
(b) safeguarding certain fundamental human rights of persons who fall into the
hands of the enemy, particularly prisoners of war, the wounded and sick, and
civilians, and (c) facilitating the restoration of peace. 116
Although the United States manual, The Law of Land Warfare, is almost
identical in its wording, 117 it stresses a point not included in the British
statement of underlying general principles:
The prohibitory effect of the law of war is not minimized by "military
necessity!,]" which has been defined as the principle which justifies those
measures not forbidden by international law which are indispensable for securing
the complete submission of the enemy as soon as possible. Military necessity has
been generally rejected as a defense for acts forbidden by the customary and
conventional laws of war inasmuch as the latter have been developed and framed
with consideration for the concept of military necessity. 118
Since both manuals refer to the importance of customary as well as
conventional law, it is useful to cite the comments in the United States text on
the sources of the law of war:
The law of war is derived from two principal sources:
{a) Lawmaking Treaties (or Conventions), such as the Hague and Geneva
Conventions.
(b) Custom. Although some of the law of war has not been incorporated in any
treaty or convention to which the United States is a party, this body of unwritten
or customary law is firmly established by the custom of nations and well defined by
recognized authorities on international law. Lawmaking treaties may be compared
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with legislative enactments in the national law of the United States and the
customary law of war with the unwritten Anglo- American common law. 119
Despite this statement, it is not always easy to determine what a particular
State recognizes as customary law. This may be seen if we refer to the United
States attitude to the use of poison gas. As already indicated, poison of any kind
was regarded as illegal from earliest times and particularly in the writings of the
"fathers" of international law. Moreover, by the Geneva Protocol of 1925, 120 to
which by the outbreak of World War II there were forty parties, with the
United States and Japan as the only major powers not ratifying or acceding, the
use of poisonous gas and bacteriological warfare was prohibited. Paragraph 38
of the United States manual states:
The United States is not a party to any treaty, now in force, that prohibits or
restricts the use in warfare of toxic or noxious gases, of smoke or incendiary
materials, or of bacteriological warfare. . . . The Geneva Protocol for the
prohibition of the use in war of asphyxiating, poisonous, or other gases, and of
bacteriological methods of warfare, . . . has been ratified or adhered to by and is
now effective between a considerable number of States. However, the United
States Senate has refrained from giving its advice and consent to the ratification by the
United States, and it is accordingly not binding upon this country [emphasis added] .
On the other hand, the United States Naval War College was of the opinion
that the "use of poisonous gases and those that cause unnecessary suffering is in
general prohibited;" 121 in 1943, during World War II, President Franklin D.
Roosevelt stated, in response to reports "that the Axis powers are making
significant preparations indicative of [an] intention ... to loose upon mankind
such terrible and inhumane weapons [, that] . . . use of such weapons has been
outlawed by the general opinion of civilized mankind. This country has not used
them, and I hope that we will never be compelled to use them. I state
categorically that we shall under no circumstances resort to the use of such
weapons unless they are first used by our enemies." 122 Despite the apparent
incompatibilities, the United States acceded to the Protocol in 1975, and the
Field Manual was amended. 123 The amendment includes the introductory
comment, "Whereas the use in war of asphyxiating, poisonous or other gases,
and of all analogous liquids, materials or devices, has been justly condemned by
the general opinion of the civilised world" — words which had already appeared
in the text of the Protocol and repeated by the president in 1943! It would
appear, however, that the official view of the Department of the Army is that
gas is forbidden by conventional and not by customary law.
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While it is true that the manuals referred to are concerned with land
warfare, the principles enunciated are of general application and equally
significant as basic principles underlying air and maritime warfare.
By way of contrast, and reflecting the views of Clausewitz, 1 4 reference might
be made to the Introduction o( the German War Book:
[T]he "argument of war" permits every belligerent State to have recourse to all
means which enable it to attain the object of the war; still, practice has taught
the advisability of allowing in one's own interest the introduction of a limitation
in the use of certain methods of war and a total renunciation of the use of others.
Chivalrous feelings, Christian thought, higher civilization and, by no means least
of all, the recognition of one's own advantage, have led to a voluntary and
self-imposed limitation, the necessity of which is today tacitly recognized by all
States and their armies. They have led in the course of time, in the simple
transmission of knightly usage in the passages of arms, to a series of agreements,
hallowed by tradition, and we are accustomed to sum these up in the words
"usage of war" [Kriegsbrauch], "custom of war" [Kriegssitte], or "fashion of war"
[Kriegsrrmnier]. Customs of this kind have always existed, even in the times of
antiquity; they differed according to the civilization of the different nations and
their public economy, they were not always identical, even in one and the same
conflict, and they have in the course of time often changed; they are older than
any scientific law of war, they have come down to us unwritten, and moreover
they maintain themselves in full vitality; they have, therefore, won an assured
position in standing armies according as these latter have been introduced into
the systems of almost every European State. The fact that such limitations of the
unrestricted and reckless application of all the available means for the conduct of
war, and thereby the humanization of the customary methods of pursuing war,
really exist, and are actually observed by the armies of all civilized States, has in
the course of the nineteenth century often led to attempts to develop, to extend,
and thus to make universally binding these pre-existing usages of war; to elevate
them to the level of laws binding nations and armies, in other words to create a
codex belli; a law of war. All these attempts have hitherto, with some few
exceptions . . . , completely failed. If, therefore, in the following work the
expression "the law of war" is used, it must be understood that by it is meant not a
lex scripta introduced by international agreements [although Germany had
become a party to the Hague Conventions in 1909], but only a reciprocity of
mutual agreement; a limitation of arbitrary behaviour, which custom and
conventionality, human friendliness and a calculating egotism have erected, but
for the observance of which there exists no express sanction, but only "the fear of
reprisals" decides. Consequently, the usage of war is even now the only means of
regulating the relations of belligerent States to one another. But with the idea of
the usages of war will always be bound up the character of something transitory,
inconstant, something dependent on factors outside the army. Nowadays it is not
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only the army which influences the spirit of the customs of war and assures
recognition of its unwritten laws. Since the almost universal introduction of
conscription, the peoples themselves exercise a profound effect upon this spirit.
In the modern usages of war one can no longer regard merely the traditional
inheritance of the ancient etiquette of the profession of arms, and the
professional outlook accompanying it, but there is also the deposit of the currents
of thought which agitate our time. But since the tendency of thought of the last
century was dominated essentially by humanitarian considerations which not
infrequently degenerated into sentimentality and flabby emotion, there have not
been wanting attempts to influence the development of the usages of war in a
way which was in fundamental contradiction with the nature of war and its
object. Attempts of this kind will also not be wanting in the future, the more so as
these agitations have found a kind of moral recognition in some provisions of the
Geneva Convention and the Brussels and Hague Conferences. Moreover, the
officer is a child of his time. He is subject to the intellectual tendencies which
influence his own nation; the more educated he is the more will this be the case.
The danger that, in this way, he will arrive at false views of the essential character
of war must not be lost sight of. The danger can only be met by a thorough study
of war itself. By steeping himself in military history an officer will be able to guard
himself against excessive humanitarian notions, it will teach him that certain
severities are indispensable to war, nay more, that the only true humanity very
often lies in a ruthless application of them. 125
The somewhat cynical and cavalier attitude to the law of war expounded
here finds its application as recently as 1941 in the reply of Field Marshal
Wilhelm Keitel to the warning by Admiral Wilhelm Canaris that the German
treatment of Soviet prisoners of war was contrary to international law: "The
objections arise from the military concept of chivalrous warfare. This is the
destruction of an ideology." 126
Regardless of the German point of view, it is generally accepted that the
binding law of war today finds its origins in the Geneva and Hague
conventions. The latter are the product of the Conferences o{ 1899 and 1907
called at the initiative of Czar Nicholas II, and the principles established there
underlie what is now known as the "Law of the Hague." In 1899, in addition to
the Declaration against soft-nosed explosive bullets already referred to, there
appeared a ban on the diffusion of asphyxiating or deleterious gases, as well as
the first elementary effort to deal with aerial warfare by banning the launching
of projectiles from balloons. 127 For the main part, these Declarations were
regarded as temporary pending the calling of a third Hague Conference, which
has never taken place. However, even though not all the powers have ratified
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.^ — — — — ^— — — — ^— _ i — ^— ^ — — — ^— ^— — — — — — — •— — ^— — — — —
or acceded thereto, the general view is that they express rules of customary law.
That this is so is demonstrated by the Judgment of the International Military
Tribunal at Nuremberg with its comment:
Several of the belligerents in the recent war were not parties to the [IVth]
Convention. . . . [B]y 1939 these rules laid down in the Convention were
recognized by all civilized nations, and were regarded as being declaratory of the
laws and customs of war. . . . The argument in defence of the charge with regard
to the murder and ill- treatment of Soviet prisoners of war, that the U.S.S.R. was
not a party to the Geneva Convention is quite without foundation. On the 15th
September 1941 Admiral Canaris protested against the regulations for the
treatment of Soviet prisoners of war. ... He then stated!,] "The Geneva
Convention for the treatment of prisoners of war [to which the Soviet Union was
not a party) is not binding in the relationship between Germany and the
U.S.S.R.; therefore only the principles of general international law on the
treatment of prisoners of war apply. Since the 18th century, these have gradually
been established along the lines that war captivity is neither revenge nor
punishment, but solely protective custody, the only purpose of which is to
prevent the prisoners of war from further participation in the war. This principle
developed in accordance with the view held by all armies that it is contrary to
military tradition to kill or injure helpless people. . . . The decrees for the
treatment of Soviet prisoners of war enclosed are based on a fundamentally
different view-point." This protest which correctly stated the legal position, was
ignored. 128
It is now apt that reference be made to Convention II of 1 899, as amended as
Convention IV in 1907. Many of its basic principles, and especially the
Preamble, are applicable mutatis mutandis in any theater of war:
Seeing that, while seeking means to preserve peace and prevent armed conflict
between nations, it is likewise necessary to bear in mind the cases where the
appeal to arms has been brought about by events which their care was unable to
avert; Animated by the desire to serve, even in this extreme case, the interests of
humanity and the ever progressive needs of civilization; Thinking it important, with
this object, to revise the general laws and customs of war, either with a view to
defining them with greater precision or to confirming them, within such limits as
would mitigate their severity as far as possible. . . . [T]hese provisions, the wording of
which has been inspired by the desire to diminish the evils of war, as far as military
requirements permit, are intended to serve as a general rule of conduct for the
belligerents in their mutual relations and in their relations with the inhabitants. It has
not, however, been found possible at present to concert regulations covering all
the circumstances which arise in practice. On the other hand, the High
Contracting Parties clearly do not intend that unforeseen cases should, in the
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absence of a written undertaking, be left to the arbitrary judgment of military
commanders. Until a more complete code of the laws of war has been issued, the High
Contracting Parties deem it expedient to declare that, in cases not in the Regulations
adopted by them [and annexed to the Convention] the inhabitants and the
belligerents remain under the protection and the rule of the principles of the law of
nations, as they result from the usages established among civilized peoples, from the laws
of humanity, and the dictates of the public conscience. 129
The last sentence is known as the Martens Clause, after the Russian foreign
minister who introduced it. Its purpose was to deal with any lacunae or
unexpected situation that might arise, thereby preventing the possibility of any
belligerent contending that its actions were legitimate since they were not
expressly forbidden by the Convention. Today, it is understood to apply to
every armed conflict and tends to be embodied, either directly or by way of
paraphrase, in every treaty concerning the conduct of hostilities. Thus, Article
1, paragraph 2, of Protocol I, 1977, provides: "In cases not covered by the
Protocol or by other international agreements, civilians and combatants
remain under the protection and authority of the principles of international
law derived from established custom, from the principles of humanity and from
the dictates of public conscience." Embodying the principle in the actual body
of the Protocol rather than, as had been the practice formerly, in the Preamble,
ensures that it has been elevated to become part of the mandatory law. It is
unfortunate, however, that no attempt has been made to define what
constitutes "the principles of humanity and the dictates of the public
conscience." Presumably, it is assumed that these are so well known and so
generally accepted as to render definition superfluous. Interestingly enough, in
the case of Protocol II dealing with non-international conflicts, the Clause
remains part of the Preamble. Since this is the first treaty effort to deal with
such conflicts, other than the short mini-bill of rights found in Article 3
common to the four 1949 Conventions, the reference to "established custom"
has, perhaps not unreasonably, been omitted.
In accordance with general treaty practice at the time, the Hague
Conventions contain a "general participation" clause, the effect of which is to
ensure that the Convention only applies during a conflict in which all the
belligerents are parties to the Convention claimed to be applicable. This would
mean that if any belligerent, however insignificant, even one only nominally a
party to the conflict but not contributing any forces or materiel, has not
acceded to the Convention, it would not be applicable even though the "real"
belligerents were all apparently bound thereby. This failing tended to give
added significance to the Martens Clause, with its reference to custom and the
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like. Moreover, the "real" belligerents in such circumstances have tended to
apply the Convention as between themselves, 1 while to the extent that the
Convention reproduces customary law 131 or is regarded as having hardened
into such custom (as explained by the Nuremberg Tribunal), 132 the "general
participation" clause has lost its significance; in fact, it is no longer used.
Instead, as is made clear in the 1949 Conventions, the present law operates "in
all circumstances . . . [and although one of the Parties in conflict may not be a
Party to the present Convention, the Powers who are parties thereto shall
remain bound by it in their mutual relations . . . [and] in relation to the said
Power, if the latter accepts and applies the provisions thereof." 133
While the Hague and Geneva Conventions applied in both world wars, it
should be borne in mind that in none of them was any provision made for the
trial of individual offenders. The only reference to "liability" in the
then-existing black-letter law was Article 3 of Hague Convention IV, which
provided that "a belligerent party which violates the provisions of the
regulations shall, if the case demand, be liable to pay compensation. ... It shall
be responsible for all acts committed by persons forming part of its armed
forces." It is on the basis of this provision that former prisoners of the Japanese
are seeking to recover personal compensation 134 — regardless of the fact that
unless it is clearly provided otherwise, only the States parties to the treaty
acquire enforceable rights thereunder 135 and even though the Peace Treaty
with Japan 136 liquidated personal claims, thus invalidating any claim that might
have been created under the 1907 Convention.
Although the Convention provides for state responsibility which, in
accordance with the normal rules of international law, amounts to an
international tort resulting from breach of treaty, it says nothing about the
liability of any officer ordering, nor of personal responsibility of any individual
committing, a breach. Therefore, until the establishment of the International
Military Tribunals at Nuremberg and Tokyo at the end of World War II, all
trials of persons charged with committing breaches of the laws and customs of
war were conducted by national tribunals 13 ' applying customary international
law, 138 the Hague Regulations, 139 or, in the case of their own personnel, the
national military or criminal code. 140
It is sufficient for our purposes merely to mention the offenses within the
jurisdiction of the International Tribunals without going into excessive detail.
By the London Charter establishing the Nuremberg Tribunal, 141 jurisdiction
was granted over crimes against peace, war crimes, and crimes against
humanity; the same was done in the case of the Tokyo tribunal. More
important perhaps than the judgments, was the General Assembly's Resolution
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affirming the Principles of International Law Recognized by the Charter of the
Tribunal, 142 especially as these were spelled out by the International Law
Commission in 1950:
I. Any person who commits an act which constitutes a crime under
international law is responsible therefor and liable to punishment.
II. The fact that internal law does not impose a penalty for an act which
constitutes a crime under international law does not relieve the person who
committed the act from responsibility under international law.
III. The fact that a person who committed an act which constitutes a crime
under international law acted as Head of State or responsible Government
official does not relieve him from responsibility under international law.
IV. The fact that a person acted pursuant to order of his Government or of a
superior does not relieve him from responsibility under international law,
provided a moral choice was in fact possible to him.
V. Any person charged with a crime under international law has the right to a
fair trial on the facts and law.
VI. The crimes hereinafter set out are punishable as crimes under
international law:
(a) Crimes against peace. . . .
(b) War crimes. . . .
(c) Crimes against humanity. . . .
VII. Complicity in the commission of a crime against peace, a war crime, or a
crime against humanity ... is a crime under international law. 143
Perhaps it should be pointed out here that while the Principles deal explicitly
with superior orders, they do so only implicitly in so far as the counterpart of
command responsibility is concerned. 144 By way of contrast, Protocol I is silent on
superior orders, 145 but very specific on command responsibility. 146 Moreover, the
Protocol has made it difficult for any superior to claim that he was unaware of the
law, since Article 82 requires legal advisers to be "available, when necessary, to
advise military commanders at the appropriate level 147 on the application of the
Conventions and the Protocol [as well as] on the appropriate instruction to be
given to the armed forces on this subject."
The significance of the Nuremberg Judgment may be seen in the manner in
which subsequent national war crimes tribunals have referred to and applied
the principles stemming from that Judgment. 148 It has equally proved
significant in the jurisprudence of the ad hoc Tribunal established for the
Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of Former Yugoslavia since
1991, particularly in relation to the concept of crimes against humanity. 149
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A problem that confronts the ordinary man in the field is the legality of
weaponry. Some weapons are considered to be illegal per se, particularly those
which have become outdated, such as boiling oil (effective against besieging
forces) or those useful in dismounting knights in armor, such as the club, battle
axe, ball and chain, or heavy lance. 150 While a combatant would probably not
be held liable merely because he used the weapons issued to him, since he
would almost certainly not know what type of ammunition was in fact
permitted, it would be illegal for him, and subject him to trial, to alter the
weapons issued so as to cause injuries likely to result in unnecessary suffering,
which is forbidden in every text relating to conduct in bello.
Relatedly, particular States have occasionally sought to ban or declare illegal
the employment of "barbarian" forces. Thus, the German War Book
condemned as "closely connected with the unlawful instruments of war the
employment of uncivilized and barbarous peoples in European wars. . . . The
transference of African and Muhammedan Turcis to a European seat of war by
the French in the year 1870 was ... a retrogression from civilized to barbarous
warfare, as these troops had and could have no conception of
European-Christian culture, of respect for property, and the honour of women,
etc." 151 Today it is clear that such discrimination would be completely contrary
to the law, and the modern soldier must on no account discriminate among
enemy personnel on the basis of sex, race, nationality, religion, political
opinion or any other criteria. 152 In other words, in accordance with the basic
humanitarian principles on which the law of armed conflict rests, all members
of an adverse party are entitled to equal protection. However, by Article 47 of
Protocol I, this basic principle of non-discrimination does not extend to
mercenaries, who are denied the status of lawful combatants and are therefore
not regarded as prisoners of war if captured. 153
Since the adoption of Protocol II annexed to the 1980 Convention on
Prohibition or Restriction on the Use of Certain Conventional Weapons which
may be Deemed to be Excessively Injurious or to have Indiscriminate Effects,
the placing of booby traps — probably one of the easiest weapons for the
individual man in the field to make for himself — is illegal if employed as a
reprisal against civilians or indiscriminately placed so that it "may be expected
to cause incidental loss of civilian life, injury to civilians, damage to civilian
objects, or a combination thereof." 154 It would not, however, be an offense for
him to booby-trap a building that has been evacuated by civilians and which he
reasonably anticipates is likely to be occupied by members of the adverse party's
armed forces.
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Other than the Conventional Weapons Convention, as amended, little by
way of treaty has been introduced to expand the scope of the law of war beyond
what is to be found in the Hague and Geneva Law. Perhaps the major
development of 1949, arising from the experience of occupied Europe during
World War II, was the adoption of Convention IV 155 relating to the protection
of civilians in occupied territory, although all that need be said of it here is that
it introduced criminal liability for those committing grave breaches against
such "protected" persons. The principal innovation of the four Conventions,
however, was the introduction of Article 3 into each of them. This
promulgated a minimal statement of rights that would apply even in a
non-international armed conflict. It is of interest to mention that the majority
of the Trial Chamber of the ad hoc Tribunals for the former Yugoslavia in the
Tadic case, while recognizing the significance and application of Article 3,
rejected in the particular circumstances of that case the contention that the
Conventions, including the Civilians Convention, were applicable. 156 Some
effort had been made in 1977, with the adoption of Protocol I, 157 to extend the
law to certain conflicts previously regarded as non-international. By Article 1,
paragraph 4, wars of national liberation were raised to the level of international
armed conflicts governed by the provisions of the law of war, although by
Article 44, paragraph 3, protection is given to those who might be described as
"farmers by day and combatants by night," provided they "carry their arms
openly" during an engagement or while visible to the adversary during
deployment preparatory to launching an attack.
Extending the effort to humanize non-international conflicts, in which
traditionally the horrors are frequently far more grave and extensive than they
are in international conflicts, Protocol II 158 elaborates some measures of
humanitarian law which are applicable in a non-international conflict not
amounting to a war of national liberation, which would fall within the purview
of Protocol I. While Protocol II forbids a variety of acts, it makes no provision
for punishment of breaches. Nor for that matter is common Article 3 o{ the
Conventions, which also deals with non-international conflicts, included in
any of the lists of grave breaches in the four Conventions or in Protocol I. This
would imply that there is no way to deal with breaches oi the law if committed
during a non-international conflict. However, since both Protocol II and
common Article 3 forbid certain types of action, it must be presumed that the
intention is that such activities must be amenable to trial and punishment.
Further, it should be noted that most of the acts forbidden by Protocol II, and
especially those listed in common Article 3, would, when directed against
humans, almost certainly amount to crimes against humanity, thus giving rise
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to universal jurisdiction. Moreover, the Statutes of both the ad hoc tribunals
established to deal with breaches of the law occurring in Rwanda and the
former Yugoslavia clearly envisage criminal jurisdiction as being applicable to
such conflicts, 159 although the Judgment of the Trial Chamber in the Tadic
Case 160 has apparently reduced the significance of the Conventions in such
conflicts.
Among other developments in the law introduced in 1977 — which to some
extent bring the modern law into line with such ecological injunctions as those
relating to the immunity of trees and the like in the Old Testament — are those
relating to protection of the natural environment. By Article 55 of Protocol I
"[c]are shall be taken in warfare to protect the natural environment against
widespread, long-term and severe damage. This protection includes
prohibition oi the use of methods or means of warfare which are intended or
may be expected to cause such damage to the natural environment and thereby
to prejudice the health and survival of the population." Even more in direct
line with the Old Testament or the military codes of the feudal period is Article
54, whereby it is forbidden "to attack, destroy, remove or render useless objects
indispensable to the survival of the civilian population, such as foodstuffs,
agricultural areas for the production of foodstuffs, crops, livestock, drinking
water installations and supplies and irrigation works, for the specific purpose of
denying them for their sustenance value to the civilian population of the
adverse Party, whatsoever the motive."
Perhaps most likely to affect adversely the environment and cause
widespread, long-term, and severe damage are nuclear weapons. However,
since the Intentional Committee of the Red Cross and the major powers
considered the issue to be one of disarmament rather than means or methods of
warfare, the Protocol does not deal with them in any way. It does, however,
grant protection to "works or installations containing dangerous forces, namely
dams, dykes and nuclear electrical generating stations." 161
However, there have been some developments outside of treaty in relation
to nuclear weapons. In 1996, the International Court of Justice handed down
its Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons. 162
Pointing out that because it could not find "a conventional rule of general
scope, nor a customary rule specifically proscribing the threat or use of nuclear
weapons per se, it [became necessary to deal] with the question whether
recourse to nuclear weapons must be considered as illegal in the light of the
principles and rules of international humanitarian law applicable in armed
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conflict," 163 bearing in mind the continued significance of the Martens Clause.
The court noted that
humanitarian law, at a very early stage, prohibited certain types of weapons
either because of their indiscriminate effects on combatants and civilians or
because of the unnecessary suffering caused to combatants, 164 that is to say, a
harm greater than that unavoidable to achieve legitimate military objectives. If
an envisaged use of weapons does not meet the requirements of humanitarian
law, a threat to engage in such use would also be contrary to that law. . . .
[Moreover,] these fundamental rules [embodied in the Hague and Geneva
Conventions] are to be observed by all States whether or not they have ratified
the conventions that contain them, because they constitute intransgressible
principles of international customary law. 165
Inasmuch as it has been suggested that the accepted rules were irrelevant
since they developed before the invention of nuclear weapons, the Court noted
that the conferences of 1949 and 1994-1997 left these weapons aside, and
accepted that
there is a qualitative difference between nuclear weapons and all conventional
weapons. However, it cannot be concluded from this that the established
principles and rules of humanitarian law applicable in armed conflicts did not apply
to nuclear weapons. Such a conclusion would be incompatible with the
intrinsically humanitarian character of the principles in question which permeates
the entire law of armed conflict and applies to all forms of warfare and to all kinds
of weapons, those of the past, those of the present and those of the future. 166
Having thus emphasised the validity of the rules of international
humanitarian law, it is perhaps not surprising that the Court found itself unable
to:
make a determination on the validity of the view that the recourse to nuclear
weapons would be illegal in any circumstances owing to their inherent and total
incompatibility with the law applicable in armed conflict. Certainly, . . . the
principles and rules of law applicable in armed conflict — at the heart of which is
the overriding consideration of humanity — make the conduct of armed
hostilities subject to a number of strict requirements. Thus, methods and means
of warfare, which would preclude any distinction between civilian and military
targets, or which would result in unnecessary suffering to combatants, are
prohibited. In view of the unique characteristics of nuclear weapons, . . . the use
of such weapons in fact seems scarcely reconcilable with respect for such
requirements. Nevertheless, the Court considers that it does not have sufficient
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elements to enable it to conclude with certainty that the use of nuclear weapons
would necessarily be at variance with the principles and rules applicable in armed
conflict in any circumstance. . . . 167
In the light of this reasoning, the Court concluded that it
cannot lose sight of the fundamental right of every State to survival, and thus the
right to resort to self-defence, in accordance with Article 51 [of the Charter],
when survival is at stake. . . . Accordingly, in view of the present state of
international law viewed as a whole, the Court is led to observe that it cannot
reach a definite conclusion as to the legality or use of nuclear weapons by a State
in an extreme circumstance of self-defence, in which its very survival would be at
stake. . . . 168
All one can say on the basis of the Court's Opinion is that the use or threat
to use a nuclear weapon would be contrary to the principles of international
humanitarian law and therefore illegal. However, in circumstances in which a
state may feel — and this is a matter of pure auto-interpretation for the State
itself — that its very survival is at stake, then a recourse to the use of this
weapon might nevertheless be lawful!
Just as there is no black-letter law with regard to nuclear weapons, so there is
no treaty law concerning aerial warfare. However, in 1923 a Committee of
Experts drew up a code of draft Rules of Air Warfare 169 which are generally
regarded as, "to a great extent, correspond [ing] to the customary rules and
general principles underlying the conventions on the law of war on land and at
sea." 170 We also find in the decision of the Nagasaki District Court, when
considering the legality of the atomic attacks on Hiroshima and Nagasaki,
some judicial comment to support this view:
The Draft Rules of Air Warfare cannot directly be called positive law, since they
have not yet become effective as authoritative with regard to air warfare.
However, international jurists regard the Draft Rules as authoritative with
regard to air warfare. Some countries regard the substance of the rules as a
standard of action by armed forces, and the fundamental principles of the Draft
Rules are consistently in conformity with international law regulations and
customs at the time. Therefore, we can safely say that the prohibition of
indiscriminate aerial bombardment on an undefended city and the principle of
military objective which are provided by the Draft Rules, are international
customary law [allowing for developments in terminology, this finding has much
in common with the Opinion of the World Court], also from the point that they
are in common with the principle in land and sea warfare. Further, since the
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distinction of land, sea and air warfare is made by the place and purpose of
warfare, we think that there is also sufficient reason for argument that, regarding the
aerial bombardment of a city on land, the laws and regulations respecting land warfare
analogically apply since the aerial bombardment is made on land. 111
This last statement prophetically foretells Article 49 of Protocol I, which is
part of the Section (Part IV, Section I) relating to General Protection against
Effects of Hostilities, and is itself concerned with the definition of attacks and
scope of application. By paragraph 3, " [t] he provisions of this Section apply to
any land, air or sea warfare which may affect the civilian population,
individual civilians or civilian objects on land. They further apply to all
attacks from the sea or from the air against objectives on land but do not
otherwise affect the rules of international law applicable in armed conflict at
sea or in the air."
From what has been said herein, it is clear that since earliest times there
has been recognition that humanity and the future survival of society demand
that limitations be placed upon the means and methods of warfare, and that
this remains the case today, whether the hostilities take place in international
or non-international conflicts. As is made clear by the Martens Clause, which
the World Court has indicated is just as significant today as it was when
Martens introduced it, when seeking the law of war it is not enough to look
merely at the written documents which have been drawn up and accepted by
States as treaties. These may be considered as reflecting what has developed
in practice as representing what States are prepared to impose upon their
armed forces by way o{ restrictions on their freedom of action. Although it
may not always be easy to ascertain what are claimed to be the customary
rules in this regard, the principles of humanity and the dictates of public
conscience, taken together with consideration of the accepted practices of
the most significant military forces, are probably sufficiently well known and
accepted to provide the guidance necessary to understand what is meant by
those terms. Despite the fact that modern tribal wars seem to suggest that
what was formerly regarded as being almost universally accepted behavior
may not now be so considered, it may be suggested that the principles referred
to are no more or less than what Article 38 of the Statute of the International
Court of Justice refers to as general principles of law recognized by civilized
nations — even though they may be nothing more than the principles which
"we and our friends, all of whom are civilized," generally recognize as
constituting principles of law and as such binding!
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Notes
This paper is based on an article orginially published in 1994 Finnish Year Book of
International Law 93.
1. CLAUSEWITZ, On WAR, bk. I, ch. 1, para. 2; ch. 2, p. 90; ch. 1, paras. 2 &3 (Howard &
Paret eds., 1976) (empasis in original).
2. Deft of Defense, Report to Congress, Conduct of the Persian Gulf War,
Apr. 10, 1992, app. O, reprinted in 31 I.L.M. 612, 615 (1992).
3. See, e.g., RECOUT, La DOCTRINE DE LA GUERRE JUSTE (1935) ; Santoni, Nurturing the
Institution of War: Just War Theory's Justifications and Accommodations, in HlNDE, THE
Institutions of War (1991) ; Walzer, Just and Unjust Wars (1977).
4. It was rare "that a good man should be found willing to employ wicked means." THE
Discourses, bk. I, ch. xviii (1532).
5. Machiavelli, The Prince xxvi (1513).
6. Treaty of Versailles, 1919, ch. 1, 12 B.F.S.P. 1; 13 AM. J. INTL L. 2 (Supp. 1919); 2
Israel, Major Peace Treaties of Modern History, 1648-1967, at 1265 (1967).
7. See 1 FERENCZ, DEFINING INTERNATIONAL AGGRESSION 77 (1979).
8. Id. at 124.
9. Id. at 132.
10. Judgment, 1945, HMSO, Cmd. 6964, 39-41 (1946); 41 AM. J. INTL L. 218-20 (1947);
FERENCZ, supra note 7, at 486-8.
11. Treaty Providing for the Renunciation of War as an Instrument of National Policy,
Aug. 27, 1928, art. 1, 94 L.N.T.S. 57, T.I.A.S. No. 796.
12. Reprinted in 29 AM. J. INT'LL.93 (1935).
13. 1945. 82 U.N.T.S. 280, 59 Stat. 1544, reprinted in THE LAWS OF ARMED CONFLICTS
911 (Schindler& Toman eds., 1988).
14. Res. 95 (I), 1946, reprinted in id. at 921.
15. 1950. Reprinted in id. at 923.
16. See, e.g., DlNSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 182-7 (1994).
17. Id. at 179-82.
18. See, e.g., Samuel 1:15, wherein the prophet himself kills Agag.
19. Deuteronomy 20: 10-14, 19-20.
20. Roberts, Judaic Sources and Views on the Laws of War, 37 NAVAL L.R. 221, 231 (1988);
see also Green, The Judaic Contribution to Human Rights, 28 CAN. Y.B. INT'L L. 3 (1990).
21. Protocol Additional to the Geneva Conventions of Aug. 12, 1949 and Relating to the
Protection of Victims of International Armed Conflicts, June 10, 1977, art. 54, reprinted in
Schindler & Toman, supra note 13, at 621 [hereafter Protocol I].
22. Proverbs 24: 21.
23. Proverbs 25: 21; 2 Kings 6: 22-23.
24. Roberts, supra note 20, at 233.
25. Written about the sixth century B.C. (Griffith trans., 1963) at 78-9.
26. Keegan, A History of Warfare, citing Creel, The Origin of Statecraft in
China 257, 265 (1970).
27. Sanskrit epic composed in the third century B.C.
28. Epic Sanskrit poem based on Hindu ideals, probably composed between 200 B.C. and
A.D. 200.
177
The Law of War
29. It was not until 1980 (with Protocols II and III annexed to the Convention on
Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed
to be Excessively Injurious or to Have Indiscriminate Effects [Schindler & Toman, supra note 13,
at 185]) that booby traps and incendiaries were placed under any form of restriction.
30. See infra for a discussion of weapons considered anathema to the Church.
31. See, e.g., Fenrick, The Rule of Proportionality and Protocol I in Conventional Warfare, 98
Mil. L. Rev. (1982).
32. It is not always easy to determine whether the enemy is retreating or merely
withdrawing to re-form.
33. Act 4, Scene 7, 11.5-10. This statement relates to Henry's order to kill the French
prisoners as a reprisal for the slaughter of the "boys." Shakespeare, seemingly, based his account
on Holinshed's Chronicles, but a somewhat different version is found in VATTEL, LE DROIT DES
GENS, liv. Ill, ch. VIII, s. 151 (1758). See also, generally, MERON, HENRY'S WARS AND
SHAKESPEARE'S LAWS (1993).
34. See, e.g., GREEN, ESSAYS ON THE MODERN LAW OF WAR, ch. V (War Law and the
Medical Profession) (1985).
35. All these examples are taken from Armour, Customs and Warfare in Ancient India, 8
Transactions of the Grotius Society 71, 73-7, 81 (1922).
36. These terms are given to the two branches of the law of armed conflict, the Hague Law
being the Conventions of 1899 and 1907, while the Geneva law refers to the Red Cross
Conventions of 1949 as amended in 1977. The two together are commonly described as
"humanitarian law."
37. 3 Gibbon, The Decline and Fall of the Roman Empire, 1776-1788, ch. 34, at
450 (Bury ed., 1909).
38. See, e.g., HOMER, THE ODYSSEY, 34, bk. 1, 11. 260-63, 221-3 (Lattimore trans., 1965).
39. A similar tendency is to be found in modern civil wars.
40. 2 Phillipson, The International Law and Custom of Ancient Greece and
ROME 195, 207-12, 221-3 (1911); see also THUCYDIDES, THE PELEPONNESIAN WAR 79 //.
(Hobbes trans., 1676).
41. See, GERMAN WAR BOOK, infra note 125, on use of colonial African troops in
European wars.
42. Tacitus, Annals at i, 61.
43. This is the term used by Tacitus.
44. This does not accord with the treatment meted out to Britain after the defeat of
Boudicca (or Boadicea) .
45. Livy, History of Rome at v, 27.
46. Cicero, De officiis at 1, 1 1 .
47. Phillipson, supra note 40, at 227, 228-30.
48. Alib Hasan al Muttaqui, 4 Book of Kanzuuumman 472 (1949); see also
SHAYBANI'S SlYAR, THE ISLAMIC LAW OF NATIONS, sec. 1711 (c. early ninth century,
Khadduri trans., 1966).
49. Id. at sees. 29-32, 47, 81, 110-11.
50. Khadduri, supra note 48, 13, sees. 2-38, 44, 54-60, 148-371.
51. Draper, The Interaction of Christianity and Chivalry in the Historical Development of the
Law of War, 5 INTL REV. RED CROSS 3, 19 (1965). Compare the attitude of Kapitanleutnant
(Ing.) Lenz at his trial for war crimes in 1945, The Peleus Trial, 1 UNWCC, Law Reports of
Trials of War Criminals 1, 3-4.
52. WRIGHT, A STUDY OF War 81 (1965).
178
Leslie Green
53. For a satirical comment on the appearance of these warriors, see ERASMUS, BELLUM
(1515) 17 (Imprint Soc. ed., 1972).
54- BELLI, DE RE MILITARI ET BELLI TRACTATUS (1563), pt. Ill, ch. Ill, p. 29 (Carnegie
trans., 1936), citing the CORPUS JURIS CANONICI (1500). See also THE ALEX1AD OF ANNA
CONNENA 316-7 (Sewter trans., 1969): "The crossbow is a weapon of the barbarians ... a truly
diabolical machine."
55. Treece &. Oakeshott, Fighting Men— How Men Have Fought through the
Ages 207-8 (1963).
56. BELLI, supra note 54, at 29.
57. See, e.g., KEEN, CHIVALRY (1984) ; see also Gardot, Le droit de la Guerre dans VOeuvre des
Capitaines Francais du XVI Siecle, 72 HAGUE RECUEIL397, 416 (1948).
58. See, e.g., KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES 27 (1965); see also
Contamine, Law in the Middle Ages 270-7 (Eng. trans., 1984); 2 Ward, The
Foundation and History of the Law of Nations in Europe, ch. XIV ("Of the influence
of chivalry") (1795).
59. KEEN, supra note 58, at 34.
60. Id. at 1.
61. SHAKESPEARE, HENRY V, act 4, scene 7, 11. 5-10. See generally MERON, HENRY'S Wars
AND SHAKESPEARE'S LAWS (1993).
62. Literally "skinner," armed bands of free companies. KEEN, LAWS, supra note 58, at 192;
see also id. at 97-100.
63. See 2 SCHWARZENBERGER, 2 INTERNATIONAL LAW: THE LAW OF ARMED
Conflict, ch. 39 (1968).
64. Winthrop, Military Law and Precedents, app. II (1886).
65. See, e.g., THE ENGLISH LAWS AND ORDINANCES OF WARRE 163, in 1 CM. CLODE,
Military Forces of the Crown, app.VI (1869) .
66. de Taube, L'apport de Byzance au Developpement de droit international occidental, 67
Hague Recueil 237 (1939).
67. Gardot, supra note 57, at 452-3, 469, citing FOURQUEVAUX, LA DISCIPLINE MILITAIRE
(1592).
68. GENTILI, DE JURE BELLI, lib. II, cap. xxi, pp. 275, 251 (1612) (Carnegie trans., 1933).
69. Schindler & Toman, supra note 13, at 3, art. 37.
70. Res. 3318 (XXIX), art. 5, reprinted in id. at 295.
71. Protocol I, supra note 21, art. 76.
72. BELLI, supra note 54, pt. VII, cap. Ill, at 34.
73. Butler &. Maccoby, The Development of International Law 134 (1928).
74. Id. at 187, n. 28.
75. Geneva Convention for the Amelioration of the Condition of the Wounded in Armies
in the Field, 1864, reprinted in Schindler and Toman, supra note 13, at 285.
76. Butler & Maccoby, supra note 73, at 149-51.
77. For a general discussion of "War Law and the Medical Profession," see GREEN, ESSAYS,
supra note 34, ch. VI.
78. On these distinctions and practices, see generally Stacey, The Age of Chivalry, in
Howard et al., The Laws of War 27, 32-3 (1994).
79. GENTILI, supra note 68, lib. II, cap. XVII, XVIII at 216-40.
80. Id., lib. II, cap. Ill, VI, XXIII, at 142-4, 159, 272.
81. GROTIUS, DE JURE BELLI AC PACIS (1625), lib. Ill, cap. IV, sees, xviii, ix, x (Eng. trans.,
1738), at 570, 564, 565; (Carnegie trans., 1925), at 654, 648, 649.
179
The Law of War
82. Id., cap. XI.
83. Id., sec. xix, at 649, 743.
84. Id. at 684-5, 788-9. See also Grumpelt (Scuttled U-boats) Trial, 13 I.L.R. 309 (1946).
85. Id., sees, iv, v, pp. 686, 790-1.
86. VATTEL, LE DROIT DES GENS (1798), liv. Ill, c.VIII, sees. 138-37 (Carnegie trans.,
1916) (emphasis added). See also RUDDY, INTERNATIONAL LAW IN THE ENLIGHTENMENT
245-56 (1975).
87. GENTILI, supra note 68, sec. 39 at 280.
88. Not until the Prisoners of War Convention, 1929, art. 2, reprinted in Schindler &
Toman, supra note 13, at 339, was this principle embodied in treaty law.
89. GENTILI, supra note 68, ss. 140, 142, 145-7, 155-7 at 280-3, 287, 289.
90. VATTEL, supra note 86, liv. Ill, c.VIII, sec. 156, ch. IX, sees. 172-3, pp. 289, 294-5.
91. Protocol I, supra note 21.
92. In 1954 a Convention for the Protection of Cultural Property in the Event of Armed
Conflict was adopted. Reprinted in Schindler & Toman, supra note 13, at 745.
93. General Orders No. 100, Apr. 24, 1863, reprinted in Schindler & Toman, supra note 13,
at 3 {hereinafter Lieber Code] ; see also Baxter, The First Modem Codification of the Law of War, 3
InplRev. Red Cross 171 (1963).
94. Lieber, Political Ethics 657 (1838).
95. Lieber Code, supra note 93, arts. 16, 2, 37, 44, 47.
96. Id., art. 59.
97. See, e.g., Lauterpacht, Rules of Warfare in an Unlawful War, in LAW AND POLITICS IN
the International Community 89 (Lipsky ed., 1953).
98. Modem civil wars, such as those in Bosnia or Rwanda, would appear to give the lie to
this assertion.
99. Lieber Code, supra note 93, arts. 67-68 (emphasis added).
100. Holland, The Laws of War on Land 72-3 (1908).
101. see, e.g., d'amato, the concept of custom in international law (1971);
Akehurst, The Hierarchy of the Sources of International Law, 47 BRIT. Y.B. INPL L. 273 (1974-1975);
Villiger, Customary International Law and Treaties (1985) (esp. Part III).
102. Schindler & Toman, supra note 13, at 787.
103. Id. at 270.
104. Id. at 101.
105. The most "famous" of these is the "dumdum," invented by Great Britain at Dum-Dum,
India. It was generally assumed that ordinary bullets, though they might kill, were not effective in
stopping "the onrush of a hardy and fanatical savage." In 1903, Holland (Letter to THE TIMES,
London May 2) , maintained that their use was not unlawful so far as the United Kingdom and
United States were concerned [LETTERS ON WAR AND NEUTRALITY 53 (1909) ] ; "it having been
found in the British frontier wars that the impact of an ordinary bullet did not give shock sufficient
to stop the onrush of certain assailants, so that the suffering caused to such assailants by their
expansion in the body was not useless, and did not bring them within the condemnation of
explosive bullets by the Declaration of St. Petersburg," WESTLAKE, INTERNATIONAL LAW, pt. II
(War) 78 (1913). The United Kingdom "withdrew Dum-Dum bullets during the South African
War, and it is to be taken for granted that Great Britain will not in future make use of them in a war
with civilized Powers," 2 OPPENHEIM, INTERNATIONAL LAW, sec. 112 (1st ed. 1906), leaving
open whether he considered their use against "uncivilized" powers to be lawful. Now that many
police forces are being permitted to use such explosive bullets against their own nationals, and
since it is often argued that these weapons are less destructive than ordinary rounds, it may well be
180
Leslie Green
that the ban will fall into desuetude, especially as other explosive weapons, like grenades and
mines, are still permitted.
106. Schindler & Toman, supra note 13, at 25 (emphasis added).
107. Emphasis in original.
108. See, e.g., BOTHEETAL, NEW RULES FOR VICTIMS OF ARMED CONFLICTS 195 (1982):
"The Principle of Humanity complements the principle of necessity by forbidding those measures
of violence which are not necessary (i.e., relevant and proportionate) to the achievement of a
definite military objective."
109. Schindler & Toman, supra note 13, at 35 (emphasis added).
110. Such a rule would have been important for the Imperial Japanese Army, whose
members regarded surrender or capture as the act of a coward not entitled to treatment as an
honorable soldier.
111. In fact, prior to the use of the atomic bombs in 1945, radio messages were broadcast to
the Japanese authorities naming a number of cities likely to be heavily bombed and advising
evacuation of the civilian populations.
112. Does this mean that an unoccupied hospital, though marked with a Red Cross, is not
protected? The Manual makes no reference to the status of civilian hospitals in a city subject to
bombardment.
113. Thus, the pressure methods used against members of the British Indian Army by the
Japanese in World War II to compel them to join the Indian National Army were clearly
contrary to the law of war. See Green, The Indian National Army Trials, 11 MODERN L. REV. 47
(1948), and The Problems of a Wartime International Lawyer, 2 PACE Y.B. INT'L L. 93 (1989).
114. Arts. 1, 3, 4, 6-10, 19, 32, 33, 35, 44, 47, 49, 61-3, 68, 70 (emphasis added).
115. As has been seen, however, this is not completely correct, even though there may have
been no written rules generally accepted.
116. H.M.S.O., THE LAW OF WAR ON LAND (Part III of the Manual of Military Law) 1-3
(1958).
117. Deft of the Army, The Law of Land Warfare (FM [Field Manual] 27-10)
(1956). But see paras. 137, 630, 633.
118. In practice, most States ensure that their military advisers are apprised of any proposals
that may be suggested for inclusion in a treaty concerning armed conflict. Many delegations to
such conferences include representatives of the armed forces.
119. Para. 4.
120. 94 L.N.T.S. 65; Schindler & Toman, supra note 13, at 115.
121. Naval War College, International Law Situations 106 (1935). See also id. at
102; Hyde, 3 International Law Chiefly as Interpreted and Applied by the United
States 1820 (1947).
122. DEPT. OF STATE BULL, vol.VIII, no. 207, June 12, 1943 (emphasis added).
123. FM 27-10, supra note 117, change 1, July 15, 1976.
124- See supra note 1 .
125. GERMAN WAR BOOK 52-4 (Morgan trans., 1915).
126. Nuremberg Judgment, supra note 10, at 91.
1 27. For a general discussion on the law concerning aerial warfare, see GREEN, ESSAYS, supra
note 34, ch.VII (1985).
128. Supra note 1 26, at 65, with regard to the Hague, and 48 with regard to Geneva. See also
41 AM. J. INT'LL. 177, 248-9 (1947) &48 AM. J. INT'L L. 228-9 (1954) respectively.
129. Schindler & Toman, supra note 13, at 63 (emphasis added).
181
The Law of War
130. See, e.g., the English prize cases, The Mowe [1915] and The Blonde [1922], A.C. 313,
in each of which Convention VI (Status of Merchant Ships at Outbreak of Hostilities), reprinted
in Schindler & Toman, supra note 13, at 791, was applied, though Serbia and Montenegro were
not parties.
131. E.g., Hague IV, Regulations Respecting the Laws and Customs of War on Land:
prisoners of war (arts. 4 & 7); the ban on use of poison or denial of quarter (art. 23); or denying
protection to a flag of truce (art. 32).
132. See text to note 128 supra.
133. Common arts. 1 & 2.
134. THE TIMES (London), June 24, 1997.
135. See, e.g., Civilian War Claimants' Association v. The King [1932] A.C. 14.
136. (1951). Reprinted in 46 AM. J. INPLL. (Supp.) 71 (1952). "Except as otherwise provided
in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers and
their nationals arising out of any actions taken by Japan and its nationals in the course of the
prosecution of the war." Id., art. 14 (V) (b) (emphasis added). See also Green, Making Peace With
japan, 6 Y.B. WORLD AFF. 176 (1952).
137. As to German trials held in Leipzig after WW I against German accused, these were in
accordance with Article 228 of the Treaty of Versailles, the German authorities having declined
to hand them over to the Allied Powers in accordance with the Treaty.
138. See, e.g., the German trial of Captain Fryatt (1916) for attempting to ram a German
U-boat while captain of a merchant ship. GARNER, 1 INTERNATIONAL LAW AND THE WORLD
WAR (1920), and of Nurse Edith Cavell, who, in breach of her protected status as a medical
person, assisted in the escape of Allied personnel. Nurse Cavell was not tried for a war crime as
such but for a breach of the German Military Penal Code, to which she was not strictly amenable.
Id. at 97. See also Llandovery Castle (1923), in which U-boat officers were tried by a German
tribunal for, "contrary to international law," firing upon and killing survivors of an unlawfully
torpedoed hospital ship. CAMERON, THE PELEUS TRIAL, app. IX (1948); Trial of Eck (Peleus
trial) (1945), id.; and the case of Re Klein for killing civilian nationals contrary to international
law, 1T.W.C. 46(1945).
139. See, e.g., Drierwalde Case, 1 T.W.C. 81 (1946), for killing captured RAF personnel
contrary to art. 23 (c) .
140. See Muller's Case and Neumann's Case at Leipzig, H.M.S.O.,Cmd. 1422 (1921), at 26,
36, for a finding of guilty of ill-treating prisoners of war contrary to German Penal and Military
Penal Codes; see also the U.S. trials of personnel accused of crimes against prisoners or enemy
civilians during Korean and Vietnam conflicts, e.g., U.S. v. Kennan 14 C.M.R. 742 (1954); U.S.
v. Calley 46 C.M.R. 19 (1969-1971), 1 M.J. 248 (1973). For instances of trials by German
military courts of members of the German armed forces, with executions in some cases for
offenses against Allied personnel, both civilian and military, during World War II, see ZAYAS,
Wehrmacht War Crimes Bureau 1939-1945, 18-22 (1989).
141. (1945). Reprinted in Schindler & Toman, supra note 13, at 911.
142. Res. 95 (I), 1946, reprinted in id. at 921.
143. Rat 923.
144- See e.g, Green, Command Responsibility in International Humanitarian Law, 5 INPL L. &
CONTEMP. PROBS. 319 (1995); Green, War Crimes: Crimes against Humanity and Command
Responsibility, 50 NAVAL WAR COLL. REV. 26 (1997); Parks, Command Responsibility for War
Crimes, 62 MIL. L. REV. 1 (1973); Rosenne, War Crimes and State Responsibility, in WAR CRIMES
IN INTERNATIONAL LAW 65 (EHnstein & Tabory eds., 1996).
182
Leslie Green
145. During the final session of the Conference, some States, e.g. Canada, made statements
indicating that they considered the traditional law denying superior orders as a defense, while
accepting it by way of mitigation, to be good law. LEVIE, PROTECTION OF WAR VICTIMS, Supp.
40-1 (1985).
146. Protocol I, supra note 21, arts. 86 & 87.
147. See, e.g., GREEN, ESSAYS, supra note 34, ch. 4; Draper, The Role of Legal Advisers in
Armed Services, 18 INTL REV. RED CROSS 6 (1978).
148. See, e. g., Buhler Case Polish Supreme National Tribunal 14 T.W.C. 23 (1948). See also
R. v. Finta 112 D.L.R. (4th) 513 (Sup. Ct. Can.) (1990).
149. See, e.g., Prosecutor v. DuskoTadic Case No. IT-94-1-T (1997). See also Green, Drazen
Erdemovit: The Hague Tribunal in Action, 10 LEIDEN J.lNT'LL. 363 (1997), and Dinstein, Crimes
against Humanity, in THEORY OF INTERNATIONAL LAW AT THE THRESHOLD OF THE 2 1ST
CENTURY 891 (Makarczyk ed., 1997).
150. Lists of some of these are to be found in both the British and U.S. manuals, supra notes
116 & 117, paras. 110, 111, and 34, 37 respectively.
151. GERMAN WAR BOOK, supra note 125, at 66-7.
152. Geneva Conventions, 1949, (I, art. 12; II, art. 12; III, art. 16; IV, art. 13; Protocol I, art.
75) which also forbids any discrimination on grounds of "language, national or social origin,
wealth, birth or other status, or any other similar criteria. n
153. See, e.g., Green, The Status of Mercenaries in International La<w, in ESSAYS, supra note 34,
ch. IX, and 8 ISR. Y.B. HUM. RTS. 9 (1978). See also Burmester, The Recruitment and Use of
Mercenaries in Armed Conflicts, 72 AM. J. INT'L L. 37 (1978).
154- Schindler & Toman, supra note 13, at 179, 185. 1996 amendment reprintedin 35 I.L.M.
1206, 1 209 (1996) . In 1995 a further Protocol was added to the Convention regulating the use of
laser weapons. Protocol IV on Blinding Laser Weapons, Oct. 13, 1995, 31 I.L.M. 1218 (1996).
155. Schindler & Toman, supra note 13, at 495.
156. Supra note 149, Judgment, May 7, 1997.
157. Protocol I, supra note 21, at 621.
158. Schindler & Toman, supra note 13, at 689.
159. Rwanda, S.C. Res. 955 (Annex), 1994, reprinted in 33 I.L.M. 1598 (1994); Yugoslavia,
S.C. Res. 827 (Annex), 1993.
160. See note 149 supra.
161. Protocol I, supra note 21, art. 56.
162. 35 I.L.M. 809 (1996)
163. Id., paras. 74, 78.
164. In view of the effects of the nuclear weapon, this implies that even tactical weapons used
in the field are likely to be considered illegal, as inhumane. In this connection, see id., para. 94-
165. Id., paras. 78,79.
166. Id., para. 88.
167. Id., para. 95.
168. Id., para. 96.
169. Schindler & Toman, supra note 13, at 207.
170. Id. See also SPAIGHT, AIR POWER AND WAR RIGHTS 42-3 (1947); 2 OPPENHEIM,
INTERNATIONAL LAW 519 (7th ed., Lauterpacht ed., 1952); 2 SCHWARZENBERGER,
International Law 153 (1968); 1 Levie, The Code of International Armed
Conflict 207-26 (1985).
171. Shimoda v. Japan, 8 JAP. ANN. INTL L. 212, 237-8 (1963); 32 I.L.R. 626 , 631 (1966)
(emphasis in original) .
183
184
VII
The Law of Weaponry
at the Start of the New Millennium
Christopher Greenwood
I. Introduction
HE LAW OF WEAPONRY, which seeks to regulate both the means and
the methods of warfare, is one of the oldest and best established areas of
the laws of war. 1 It is also widely regarded as one of the least effective. The
remarkable progress which has been made in the development of weaponry and
methods o{ warfare during the twentieth century has been unmatched by
development in the law. The result is that much of the law and the legal
literature in this field has a distinctly anachronistic feel. For example, the
prohibition of weapons causing unnecessary suffering 2 was first established over
a century ago but remains part o( the law and was recently applied by the
International Court of Justice in considering the legality of nuclear weapons. 3
Yet a 1973 survey o( the law on weaponry by the United Nations Secretariat
cited bayonets or lances with barbs, irregular shaped bullets, and projectiles
filled with glass as examples of weapons considered to be outlawed by the
unnecessary suffering principle. 4 Scarcely standard weapons at the beginning of
the twentieth century, these were museum pieces by its end. Similarly, leading
text books refer to the unnecessary suffering principle meaning that "cannons
The Law of Weaponry
must not be loaded with chain shot, crossbar shot, red-hot balls, and the like." 5
Such examples suggest that the law is firmly rooted in the nineteenth century.
Yet it would be wrong to write off the law on weaponry as unimportant in
modern warfare. The twentieth century has seen the adoption of prohibitions on
two of the century's most destructive innovations in weaponry — chemical and
bacteriological weapons. 6 In the closing years of the century, there has been a
burst of activity, unprecedented in this area since the Hague Peace Conferences
of 1899 and 1907, which has produced treaties on blinding laser weapons 7 and
anti-personnel land mines, 8 as well as a treaty which greatly strengthens the ban
on chemical weapons. In addition, the evolution of customary international law
regarding the protection of the environment in time of armed conflict has had
effects on the law of weaponry, while the discussion of the legality of nuclear
weapons by the International Court of Justice, though inconclusive and
unsatisfactory in a number of respects, demonstrated that principles established
in the last century are capable of being applied well into the next. 9 Finally, wider
developments in the laws of armed conflict, in particular the development of the
law by the ad hoc tribunals for Rwanda and the Former Yugoslavia and the
negotiations for the establishment o{ a permanent international criminal court,
have had repercussions for the law on weaponry. 10
It is therefore a good time at which to take stock oi the law relating to
weaponry and to consider how that law might develop in the early years oi the
new millennium. If that is to be done, however, it is important to have a clear
understanding of the objectives which the law seeks to achieve in this area and
the means by which it has sought, so far, to secure them. Among the reasons why
the law on weaponry is so often seen as ineffective are that its objectives are
misunderstood and unrealistic expectations are entertained as to what can be
achieved. The present paper will accordingly begin with a brief account of the
development oi the law (Part II) and an analysis of its objectives (Part III). Part
IV will then assess the law of weaponry as it stands at the end of the twentieth
century. That law does not, however, operate in isolation, and Part V will
therefore consider the influence of other parts of international law, in particular
those concerned with the restriction of the resort to force, the protection of
human rights, and the environment, which may have an impact upon the use of
weapons in conflicts. Finally, Part VI will consider how the law is likely to
develop in the foreseeable future — and how it might be strengthened.
II. The Development of the Law Relating to Weaponry
The prohibition of certain weapons, particularly poisonous weapons, can be
traced back many centuries. The contemporary law on weapons and the
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methods of warfare, however, began to develop only in the mid-nineteenth
century. The Lieber Code 11 mentioned the prohibition on the use of poison
and, in its emphasis on the principle of necessity, contained an early, albeit
implicit, statement of the prohibition of weapons calculated to cause
unnecessary suffering. 12 The draft declaration drawn up by the Brussels
Conference in 1874 and the Oxford Manual prepared by the Institute of
International Law in 1880 both contained provisions to the effect that a
belligerent State did not possess an unlimited choice of the methods and means
of war and prohibited the use of poison, treachery, and weapons causing
needless suffering. 14 It is clear, therefore, that by the late nineteenth century
there was considerable support for the proposition that international law
imposed some constraints upon the weaponry which a belligerent might
employ.
The first treaty to that effect was the St. Petersburg Declaration of 1868,
which outlawed the employment in hostilities between parties to the
Declaration of any "projectile of a weight below 400 grammes, which is either
explosive or charged with fulminating or inflammable substances." 15 While the
specific prohibition introduced by the Declaration is still in force, a more
important feature of the Declaration is the statement in the Preamble of the
reasoning behind the specific prohibition, namely:
That the only legitimate object which States should endeavour to accomplish
during war is to weaken the military forces of the enemy;
That for this purpose it is sufficient to disable the greatest possible number of
men;
That this object would be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men or render their death inevitable; [and]
That the employment of such arms would, therefore, be contrary to the laws of
humanity.
It is this statement which provided the first recognition in treaty form of the
prohibition of weapons calculated to cause unnecessary suffering.
The Hague Peace Conferences of 1899 and 1907 built upon these
foundations in a number of agreements. Thus, the Regulations on the Laws and
Customs of War on Land, adopted at the 1907 Conference, 16 provide that "the
right of belligerents to adopt means of injuring the enemy is not unlimited"
(Article 22) and go on to declare that it is "especially forbidden" "to employ
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arms, projectiles, or material calculated to cause unnecessary suffering"
(Article 23(e)). The Peace Conferences also adopted a number of other treaty
provisions relating to weaponry and methods of warfare:
• Hague Declaration No. 2, 1899, banning the use of projectiles the sole
object of which is the diffusion of asphyxiating or deleterious gases; 17
• Hague Declaration No. 3, 1899, prohibiting the use of bullets which
expand or flatten easily in the body (especially the so-called soft-headed or
"dum-dum" bullets); 18
• Hague Declaration No. 4, 1899, prohibiting for a period of five years the
launching oi projectiles and explosives from balloons and other methods of a
similar nature; 19
• Hague Regulations, 1907, Article 23(a), prohibiting the use of poison or
poisoned weapons; 20
• Hague Convention No. VIII, 1907, restricting the use of automatic
submarine contact mines. 21
Subsequent years saw the adoption of the 1925 Geneva Chemical and
Bacteriological Weapons Protocol, prohibiting the use of asphyxiating,
poisonous or other gases, all analogous liquids, materials or devices, and
bacteriological methods of warfare. 22 This prohibition on the use of chemical
and biological weapons was reinforced many years later by the 1972
Convention on the Prohibition of Development, Production and Stockpiling
oi Bacteriological and Toxin Weapons, which prohibited the possession of
bacteriological and toxin weapons, 23 and the 1993 Chemical Weapons
Convention, which prohibited the possession and use as a means of warfare of
chemical weapons. 24 Neither the 1949 Geneva Conventions, 25 nor the two
Additional Protocols to those Conventions, adopted in 1977, 26 deal with
specific weapons. Additional Protocol I does, however, contain a restatement
o( the principles that belligerents do not have an unlimited right to choose the
methods and means of warfare and may not employ methods or means of
warfare of a nature to cause unnecessary suffering, 27 and also codifies important
principles of customary international law regarding the protection o( civilian
life and property which have significant consequences for the freedom of States
to select the methods and means of warfare. 28 In addition, the Protocol
contains some innovative provisions on the protection of the environment in
time of armed conflict. 29 The protection of the environment was also addressed
in the 1977 United Nations Convention on the Prohibition of Military or any
Other Hostile Use of Environmental Modification Techniques, which
prohibited the use of weapons intended to change the environment through
the deliberate manipulation of natural processes. 30
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Finally, a United Nations conference held in 1980 adopted the 1981 United
Nations Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons, the three original Protocols to which prohibited the
use of weapons which injured with fragments which cannot be detected by
x-rays (Protocol I) and imposed certain restrictions on the use of mines and
booby traps (Protocol II) and incendiary weapons (Protocol III). 31 A
subsequent review conference in 1995-96 adopted an amended Protocol II on
mines (which will be superseded for some States by the 1997 Land Mines
Convention) and a new Protocol IV on laser weapons. 32
III. The Objectives of the Law Relating to Weaponry
As the law relating to weaponry is a part of the law o{ armed conflict, it is
therefore to be expected that its objectives reflect those of the law of armed
conflict as a whole. The law of armed conflict (or international humanitarian
law) is primarily concerned with preserving, as far as possible, certain core
humanitarian values during hostilities. It is not designed to prevent or deter
States from resorting to force, and the constraints which it imposes must not,
therefore, be incompatible with the effective conduct of hostilities. Every State
has an undoubted right of self-defense under international law and is entitled
to use force in order to vindicate that right. 33 While the law o{ armed conflict
imposes limitations upon what a State may do in the exercise of that right, it is
not intended to prevent the effective exercise of the right. 34 The law of armed
conflict is thus based upon the assumption that States engaged in an armed
conflict will necessarily inflict death and injury upon persons and damage to
property, and seeks to limit these effects by preventing the infliction of
suffering and damage which is unnecessary because it serves no useful military
purpose. The law goes beyond that, however, for it requires that, even where
destruction does have a military purpose, a balance be struck between the
attainment of that purpose and other values, such as the preservation of
civilian life; it prohibits the carrying out of an attack when the military benefit
which maybe expected to ensue is outweighed by the damage to those values.
The principal objective of the law of weaponry is the protection of these
values. Thus, the prohibition of indiscriminate weapons and methods of
warfare is designed to serve the objective of distinguishing between civilians
and civilian objects, on the one hand, and combatants and military objectives,
on the other, and protecting the former. Similarly, the principle that
belligerents may not employ weapons or methods of warfare of a nature to
cause unnecessary suffering serves the objective of protecting even combatants
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from suffering and death which is not necessary for the achievement of
legitimate military goals. The principle, which has only recently become a part
of the law of weaponry, that limits the use of weapons and methods of warfare
which have a substantial adverse effect upon the natural environment 35 also
has as its objective the prevention of wanton, unnecessary destruction and the
balancing of military needs against the value of environmental preservation.
To that extent, the law of weaponry forms part of an intellectually coherent
system. The law has, however, also been used to achieve other objectives which
do not so obviously form part of that system. For example, the prohibition of
perfidy, which has implications for the choice of methods of warfare (if not the
weapons themselves), is designed to serve two very different objectives. In part,
it seeks to preserve core humanitarian values by prohibiting the feigning of
surrender, protected status, or wounds, because such feints endanger those
who genuinely seek to surrender, possess protected status, or are wounded, and
whom the law seeks to protect. The prohibition of perfidy has also, however,
been used to protect able-bodied combatants from attacks which endanger no
one else but which are seen as somehow "unfair." The objective there is the
quite distinct one of preserving certain military or chivalric values. Thus, it is
easy to see that the prohibition on using the Red Cross and Red Crescent
emblems as a shield for military operations 36 serves a humanitarian objective,
since abuse of the emblem will endanger genuine medical facilities and
personnel. On the other hand, the prohibition on making use of the emblems
or uniforms of an adversary while engaging in attacks or in order to assist
military operations serves no humanitarian purpose whatsoever; rather, it
seeks to ensure that one party to a conflict does not treat the other in a way
which is perceived to be contrary to concepts of fair dealing. 37
In addition, the humanitarian objectives o{ the law of weaponry have
frequently been intertwined with broader concerns about armaments. Thus,
the First Hague Peace Conference in 1899 was convened in order to discuss
questions of peaceful settlement of disputes, disarmament, and the laws of war,
the Russian Government whose initiative had led to the convening of the
Conference being particularly concerned to ensure that limits were placed on
the introduction of new weapons and the consequent increases in military
expenditure which these would entail. In adopting the three declarations
banning the use of specific weapons, 38 the Conference clearly had that
consideration in mind, 39 but was also influenced by humanitarian
considerations. Each o{ the three Declarations contained a statement to the
effect that the Conference had been "inspired by the sentiments" of the 1868
St. Petersburg Declaration, while the debates reveal that humanitarian
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Christopher Greenwood
considerations were to the fore in the discussions. 40 Similarly, the attempts to rid
the world of chemical and biological weapons which have lasted throughout the
twentieth century have involved a mixture of humanitarian and disarmament
considerations, the 1993 Chemical Weapons Convention being couched very
much in the form of a disarmament agreement with its ban on possession as well
as use of chemical weapons and its complex verification system.
There is, of course, no reason why humanitarian and disarmament
considerations should not be combined. The outlawing of a weapon as cruel
and often indiscriminate as poisonous gas serves the values of disarmament and
humanity and the employment of disarmament mechanisms for verification
makes a ban far more effective than a simple prohibition on use. It should,
however, be borne in mind that the objectives are different. Unlike the law of
armed conflict, the disarmament process is intended to make war less likely by
achieving a reduction in armaments, irrespective o{ whether the particular
weapons involved are more or less cruel or indiscriminate than others which
may not be the subject of disarmament negotiations.
Finally, in considering the objectives which the law of weaponry is designed to
serve, it is worth remembering that the process by which those objectives have
been applied has not always been one of strict rationality. Consideration oi
whether a particular weapon or method of warfare causes unnecessary suffering or
excessive harm to civilians requires a comparison between different weapons and
methods of warfare. Yet the process of comparison has seldom been a scientific —
or even a particularly informed — one. Deep-seated taboos found in many
societies regarding certain types of injury or means of inflicting harm have meant
that certain types of weapon (those employing or causing fire, for example) have
been treated as particularly horrific, without any serious attempt being made to
compare their effects with those produced by other weapons.
Moreover, a mixture of humanitarian and disarmament considerations has
all too often been used to disguise the pursuit of more self-interested objectives.
The attempts to ban the crossbow in the twelfth century were the product of
concern not only with the injuries which a crossbow could inflict but also with
the way in which this infantry weapon changed the balance of power between
mounted knights and infantrymen of a far lower social standing. 42 Likewise, the
British proposals eight hundred years later to ban the submarine and the naval
mine owed more to the threat which those weapons posed to the supremacy of
the Royal Navy's surface fleet than their challenge to the humanitarian values
underlying the laws of armed conflict. As Captain (later Admiral) Mahan, one
of the United States delegates to the 1899 Peace Conference, explained, new
weapons have always been denounced as barbaric. 43
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The haw of Weaponry
IV. The Law of Weaponry at the End of the Twentieth Century
It has already been seen that the law of weaponry consists of general
principles, such as that prohibiting weapons of a nature to cause unnecessary
suffering, and a number of rules prohibiting, or limiting the use oi, specific
weapons or methods of warfare. While the relationship between the two is a
close one, the specific provisions frequently being an extension of one or other
of the general principles, the differences between them are sufficient to justify
separate examination here. In particular, the general principles tend to refer to
the effects produced by the use of weapons or methods of warfare, whereas the
specific provisions usually concentrate upon the means employed. Section 1 of
this Part will therefore consider the general principles, while Section 2 will
examine some of the rules pertaining to specific weapons. Finally, Section 3 will
consider the case of nuclear weapons.
Before turning to the general principles, two preliminary matters call for
comment. First, the law of weaponry — both general and specific — has been
developed in the context oi armed conflicts between States. The treaty
provisions have usually been applicable only in conflicts between the parties to
the treaty concerned and even the general principles, which apply as part of
customary law, have usually been seen as applicable only in international
armed conflicts. That assumption is now being challenged. As will be seen,
some of the most recent treaties on specific weapons, noticeably the 1993
Chemical Weapons Convention and the two new agreements on land mines
(the 1996 Amended Mines Protocol to the Conventional Weapons
Convention and the 1997 Land Mines Convention) expressly apply to internal
as well as international armed conflicts. 44 In addition, the Appeals Chamber of
the International Criminal Tribunal for the Former Yugoslavia has held, in its
decision in Prosecutor v. Tadic (Jurisdiction), that the customary international
law applicable to internal armed conflicts is more extensive than had
previously been supposed and, in particular, includes the customary rules
regarding methods and means of warfare which apply in international armed
conflicts. 45 As the Appeals Chamber put it:
[E]lementary considerations of humanity and common sense make it
preposterous that the use by States of weapons prohibited in armed conflicts
between themselves be allowed when States try to put down rebellion by their
own nationals on their own territory. What is inhumane, and consequently
proscribed, in international wars, cannot but be inhumane and inadmissible in
civil strife. 46
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Christopher Greenwood
This aspect of the decision is controversial, not least because the issue of
methods and means of warfare did not, in fact, arise on the facts of the Tadic
case and there is little evidence of State practice to support the conclusion that
the rules of customary international law in internal conflicts are as extensive as
the Appeals Chamber found. The argument of logic is, however, compelling,
and it is likely that the Tadic precedent will be followed on this point,
particularly if the International Criminal Court is established and given
jurisdiction over war crimes committed in internal conflicts. Nevertheless,
some differences remain between the law of weaponry in international conflicts
and that applicable in internal conflicts because some of the specific provisions
on weaponry have not become customary law and, therefore, depend entirely
upon treaties as the basis for their applicability.
Secondly, there have sometimes been differences of opinion over whether
weapons and methods of warfare are lawful unless prohibited (either expressly
or by necessary implication) or whether one should proceed on the basis that
the use of at least certain types of weapon is illegal in the absence of a
permissive rule to the contrary. An element of uncertainty on this question can
be seen in the Opinion of the International Court of Justice in the Nuclear
Weapons case. The Court stated both that international law contained no
"specific authorization oi the threat or use of nuclear weapons" 47 and that it
contained no "comprehensive and universal prohibition of the threat or use of
nuclear weapons as such." 48 Nevertheless, an examination of the whole
Opinion demonstrates that the Court did not endorse the argument that
nuclear weapons carried a general stigma of illegality which rendered their use
unlawful in the absence of a permissive exception to the general rule. Had the
Court adopted such an attitude, its finding that there was no rule authorizing
the use oi nuclear weapons would have disposed of the case. By holding that
international law contained neither a comprehensive prohibition of the use of
nuclear weapons, nor a specific authorization of their use, all the Court did was
to hold that the answer to the General Assembly's question had to be sought in
the application of principles of international law which were not specific to
nuclear weapons. When the Court came to consider those principles, it looked
to see whether they prohibited the use of nuclear weapons, not whether they
authorized such use. In commencing its examination of the law of armed
conflict, the Court stated that:
State practice shows that the illegality of the use of certain weapons as such does
not result from an absence of authorization but, on the contrary, is formulated in
terms of prohibition.
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The Law of Weaponry
The Court must therefore now examine whether there is any prohibition of
recourse to nuclear weapons as such ,... 49
This approach, rather than that of seeking a permissive rule, certainly accords
better with State practice in relation to all types of weaponry over an extended
period.
(I) The General Principles of the Law of Weaponry
(a) The Unnecessary Suffering Principle. The most recent statement of this
principle can be found in Article 35(2) of Additional Protocol I, which
provides that:
It is prohibited to employ weapons, projectiles and material and methods of
warfare of a nature to cause superfluous injury or unnecessary suffering.
The principle is a long established part of customary international law which
can be traced back to the 1868 St. Petersburg Declaration and to the Hague
Regulations of 1899 and 1907. As was seen in Part III, the rationale for this
principle is to be found in the broader principle of necessity in armed conflict,
which prohibits wanton violence that serves no legitimate military purpose. 50
As well as providing a general yardstick against which all weapons and methods
of warfare must be judged, the unnecessary suffering principle has provided
much of the inspiration for agreements on specific weapons, such as those on
explosive, inflammable and soft-headed or expanding bullets, 51 chemical and
biological weapons, 52 poison, 53 and weapons which injure with fragments
which cannot be detected by x-rays. 54 Some of these agreements go beyond the
general principle in that they prohibit the use of such weapons even in
circumstances where their use might not have been a violation of the general
principle. 55
The unnecessary suffering principle applies to both the methods and means
of warfare. It prohibits outright any weapon (or means of warfare) which is of a
nature to cause unnecessary suffering. In addition, where a particular weapon
has a legitimate use but is also capable of being used in a way which will, in the
circumstances, cause unnecessary suffering (and all weapons can be so used),
the principle prohibits the latter use (or method of warfare) even though it does
not give rise to an outright ban on the weapon itself.
The fact that a particular weapon or method of warfare causes severe or
widespread injuries or death, or inflicts great pain, is not, in itself, sufficient to
render its use incompatible with the unnecessary suffering principle. That
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Christopher Greenwood
principle does not possess an absolute character; it does not prohibit the use of
any weapon or method of warfare which causes extreme suffering or extensive
injuries, but only those which cause injuries or suffering that are unnecessary.
The application of the unnecessary suffering principle thus requires a balancing
of the military advantage which may result from the use of a weapon with the
degree of injury and suffering which it is likely to cause. As the Japanese court
in the case of Shimoda v. The State put it, "the use of a certain weapon, great as
its inhuman result may be, need not be prohibited by international law if it has a
great military effect." 56
This balancing act is, however, easier to state in the abstract than it is to
apply, since one is not comparing like with like and there is considerable
uncertainty regarding the factors to be placed on each side of the scales. A 1975
Conference of Experts held at Lucerne which considered this question agreed
that the principle "involved some sort of equation between, on the one hand,
the degree of injury or suffering inflicted (the humanitarian aspect) and, on the
other, the degree of necessity underlying the choice of a particular weapon (the
military aspect)," 57 but had more difficulty in agreeing on how this should best
be applied. It is important, therefore, to examine the factors which should be
taken into account on each side of the equation.
The Military Aspect. In determining what factors may be taken into account on
the military side of the equation, the Preamble to the St. Petersburg Declaration
provides a useful starting point. 58 The Declaration is based upon the premise
that, since the legitimate objective of disabling an enemy combatant could be
achieved with ordinary rifle ammunition, the "rifle shell" or exploding bullet
merely exacerbated injury or rendered death inevitable and should therefore be
prohibited. On the other hand, the high explosive shell, which was far more
destructive and just as deadly, was excluded from this prohibition because it
offered a distinct military advantage in that it could disable several combatants
with one shot or destroy large quantities of property, and thus achieve military
goals which ordinary rifle ammunition could not. In taking the decision which
they did, the States represented at the 1868 Conference rejected two factors
which might have been taken into account on the military side of the equation.
First, they expressly rejected the argument that since a disabled enemy might
recover and be able to fight again, the fact that a weapon made death inevitable
was a legitimate military reason for employing that weapon in preference to
others. The same reasoning is reflected more than a century later in the ban on
weapons which injure with fragments that cannot be detected with x-rays.
Secondly, there was an implicit rejection of the argument that the very savagery
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of a weapon might be a legitimate military advantage because of the effect
which it produced upon the morale of enemy combatants. 59
As the first modern attempt to apply the unnecessary suffering principle in a
specific case, the Declaration remains important. Nevertheless, in at least one
respect it presents an over-simplified picture. The suggestion that the legitimate
objectives of a belligerent can be achieved by disabling the greatest number o(
men overlooks the fact that there are other equally legitimate objectives, such as:
[T]he destruction or neutralisation of enemy materiel, restriction of movement,
interdiction of lines of communication, weakening of resources and, last but not
least, enhancement of the security of friendly forces. 60
It is generally accepted that the weapons needed to achieve such aims differ,
both in character and effect, from those commonly used against personnel and
may cause more serious injuries or make death more likely than would typical
anti-personnel weapons. Nevertheless, their use does not violate the
unnecessary suffering principle, because the advantages which they offer, in
terms, for example, of their capacity to destroy materiel, means that this
additional suffering cannot be characterized as unnecessary. 61
The Humanitarian Aspect. Disagreement also exists about what factors
should be taken into account on the "suffering" side of the equation. The
Lucerne Conference considered that
[T]his comprised such factors as mortality rates, the painfullness or severeness of
wounds, or the incidence of permanent damage or disfigurement. Some experts
considered that not only bodily harm but also psychological damage should be
taken into account. Another expert could not accept such a wide interpretation
of the concept at issue, as all wartime wounds, no matter how slight, could entail
severe psychological harm. 62
The present writer considers that the concept of "injury" or "suffering" includes
the totality of a victim's injury, and that a distinction between physical and
psychological injuries would be artificial, as well as having no basis in past
practice concerning weaponry. A more difficult question is whether the effects
of the victim's injuries upon the society from which he or she comes should be
taken into account on this side of the equation — for example, the effect upon a
society of having to cope with large numbers of limbless or blinded former
combatants would invariably be serious and might well be disastrous. Such
effects are, however, difficult to quantify and depend more upon the numbers
injured than the nature of the injuries in any particular case.
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Christopher Greenwood
A report published in 1997 by the International Committee of the Red Cross
attempts to specify more precise criteria for determining whether a particular
weapon causes unnecessary suffering. 63 The approach taken in this Report is to
study the medical effects of existing weapons, i.e., the degree to which they
cause death or particular types of injury, and suggest four sets of criteria to be
used in determining whether a new weapon is one which violates the
unnecessary suffering principle.
• Does the weapon foreseeably cause specific disease, specific abnormal
physiological state, specific abnormal psychological state, specific and
permanent disability, or specific disfigurement?
• Does the weapon foreseeably cause a field mortality of more than 25% or
a hospital mortality of more than 5% (figures substantially in excess of those
caused by weapons in use at present)?
• Are the weapons designed to cause particularly large wounds?
• Does the weapon foreseeably exert effects for which there is no well
recognized and proven treatment?
The identification o{ these criteria and the medical study on which they are
based is of considerable value in helping to show how the balancing act
required by the unnecessary suffering principle can be made more precise and
less anecdotal than at present. It is, however, important to realize that the fact
that a particular weapon meets one of these criteria is not, in itself, sufficient to
brand it as unlawful without consideration of the military advantages which
that weapon may offer. For example, the fact that soldiers cannot take cover
from a particular type of weapon will, as the report points out, heighten the
reaction of abhorrence produced by such a weapon. 64 But it is also the very
inability of soldiers to take cover that means that the weapon will, in the
language of the 1868 Declaration, disable the greatest possible number of
enemy combatants, and which thus gives it its military effectiveness when
compared with other weapons.
Comparison Between Weapons. The essence of the unnecessary suffering
principle is that it involves a comparison between different weapons in
determining whether the injuries and suffering caused by a particular weapon
are necessary. As Dr. Hans Blix has noted, "it is unlawful to use a weapon
which causes more suffering or injury than another which offers the same or
similar military advantages." 65 The 1868 Declaration was based, as has been
seen, on precisely such a comparison. In many cases, however, making that
comparison will be more difficult than might appear from a glance at the
approach taken in 1868.
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The Law of Weaponry
It is not enough simply to consider the immediate effects of the two weapons
(or methods of warfare) which are being compared. It may well be the case that
the one weapon offers the same or similar destructive capability and accuracy
as another while causing less horrific injuries or a lower level of fatalities. Before
it is concluded, however, that the use of the latter weapon would therefore
cause unnecessary suffering, it is necessary to consider a number o{ other
factors, in particular the availability (including the expense) of both types of
weapon and the logistics of supplying the weapon and its ammunition at the
place where it is to be used. A particularly important consideration will be the
extent to which each type of weapon protects the security of the troops which
employ it, for if the use of the first, more "humane," weapon will lead to
significantly higher casualties amongst the force using it, then there is a valid
military reason for using the second. A belligerent is not obliged to sacrifice
members of its own armed forces in order to spare the enemy's combatants (as
opposed to the enemy's civilian population) the effects of the fighting. 66 These
considerations are as much part of the military advantages which the weapon
offers as the effects which its use produces on the enemy.
Moreover, it has to be remembered that the degree o{ choice of weapons
decreases as one goes down the chain of command. While those who plan or
decide upon operations at the highest levels of command are likely to have a
large range of weapons at their disposal and the battle group or task force
commander retains a significant element of choice, the individual soldier does
not, as Professor Kalshoven puts it, carry the military equivalent of a bag of golf
clubs from which he can select the weapon appropriate to each task; usually
that soldier has no element of choice of weapon at all. 67 This consideration is
likely to be of considerable importance if, which has not hitherto been the case,
individual servicemen face trial on charges of using illegal weapons.
The Effect of the Unnecessary Suffering Principle. Although it is the oldest
principle of the law of weaponry and its continued significance has recently
been reaffirmed by the International Court of Justice, in practice the
unnecessary suffering principle has only very limited effects. In particular, it is
difficult to find a single example of a weapon which has entered into service
during the twentieth century and which is generally agreed to fall foul of this
principle. There are several reasons why that is the case. First, if the question is
whether the weapon itself, as opposed to its use in specific circumstances,
contravenes the principle, there is disagreement about the test to be applied.
At the Lucerne Conference, a paper submitted by a British military lawyer
suggested that the principle would ban a weapon outright only when that
weapon was "in practice found inevitably to cause injury or suffering
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Christopher Greenwood
disproportionate to its military effectiveness." 68 Other experts contested the
use of the word "inevitably" and argued that it was sufficient if the weapon
caused such effects in its "normal" use. Article 35(2) of Additional Protocol I
speaks of weapons "of a nature" to cause unnecessary suffering. It is doubtful
whether the use of this formula offers any greater degree of clarity. In practice,
if it can plausibly be argued that there is a significant range of cases in which a
weapon can be used without causing unnecessary suffering, the weapon itself is
unlikely to be regarded as unlawful under this principle. That conclusion is
confirmed by the paucity of examples of contemporary weapons described in
the literature as contravening the unnecessary suffering principle. 69 The result
is that the unnecessary suffering principle has generally been more important in
prohibiting particular uses of weapons (i.e., methods of warfare) than the
weapons themselves.
Secondly, as has been seen, the criteria to be employed on both sides of the
equation in the unnecessary suffering principle are far from clear. Moreover,
even if the criteria themselves were clearer, it is frequently very difficult when a
new weapon is developed for anyone outside the circle of those who have been
responsible for its development to make an informed assessment of the military
advantages which it offers or the medical effects which its use is likely to
produce.
Finally, even when sufficient information about the weapon is available, a
determination of whether or not its use would violate the unnecessary suffering
principle requires a balancing of the likely military advantages and the likely
human suffering which its use in the future will entail, and then a comparison
between that balance and what would result from the use of alternative
weapons. It is scarcely surprising that agreement on the outcome of applying
such a test is seldom achieved.
(b) The Principle of Discrimination. The second general principle prohibits
the use of indiscriminate weapons or — which is more important in
practice — the indiscriminate use of any weapon, irrespective of whether that
weapon is inherently indiscriminate. This principle is, in fact, a compound o{
three separate principles. First, it is well established in customary international
law that it is unlawful to direct attacks against the civilian population,
individual civilians or civilian property. Under the principle of distinction, a
belligerent is required to distinguish between the enemy's combatants and
military objectives on the one hand and the civilian population and civilian
property on the other, and direct his attacks only against the former. 70
Secondly, even if the target of an attack is a legitimate military objective, the
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principle of proportionality provides that it is prohibited to proceed with the
attack if it:
[M]ay be expected to cause incidental loss of civilian life, injury to civilians,
damage to civilian objects or a combination thereof, which would be excessive in
relation to the concrete and direct military advantage anticipated. 71
Finally, if there is a choice o( the methods or means o{ attack, there is a
requirement to take all feasible precautions with a view to avoiding or
minimizing incidental civilian casualties and damage. 72
These principles go primarily to the question of targeting, a matter which
falls outside the scope of this paper. 73 Nevertheless, they also have an effect
upon the law of weaponry. If a weapon is incapable of being used in a way which
permits discrimination between military targets and civilians or civilian
objects, then it is inherently indiscriminate and these principles render it
unlawful. In practice, very few weapons are so inaccurate that they cannot be
used in a way which complies with the principles set out in the preceding
paragraph, although the VI and V2 missiles used by Germany in the Second
World War probably fell into that category. 74 A far more common case of
conduct prohibited by these principles is the indiscriminate use of a weapon
which is capable of being used in a discriminating way. Iraq's use of Scud
missiles during the Gulf hostilities in 1991 is an example. 75
These principles are some of the most important cornerstones of the law of
armed conflict. They were so widely disregarded during the Second World War
that it was open to question whether they could still be regarded as part of the
customary law. Since 1945, however, they have been reaffirmed on a number of
occasions, most recently in Additional Protocol I, and were applied by, for
example, the Coalition States in the operations against Iraq in 1991. 76 Their
status as part of the contemporary customary law cannot now be doubted.
While difficulties in their application remain, Protocol I has resolved a great
many problems. In particular, it has clarified the principle that attacks must be
directed only against military objectives by offering a workable definition of a
military objective and has made clear that in applying the test oi
proportionality, only a "concrete and direct military advantage," rather than a
nebulous concept such as the effect on enemy morale, is to be weighed against
the effect of an attack upon the civilian population.
The principles contain both absolute and relative elements. The principle of
distinction possesses an absolute character — civilians and civilian objects must
never knowingly be made the object of attack and care must be taken to ensure
that any target is, in fact, a legitimate military objective. 77 The principle oi
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Christopher Greenwood
proportionality, on the other hand, involves a balancing of the military
advantages to be gained from an attack upon a military target against expected
civilian losses and damage. As with the principle of unnecessary suffering, if
those same military advantages can be achieved in different ways, one of which
involves likely civilian casualties whereas the other does not, then the choice o(
the first route will entail a violation of the principle. However, the same
qualifications apply here. In determining whether a commander who possesses
a choice of weapons or methods of warfare should select one rather than the
other, the extent to which both are truly available to him (in the light of such
considerations as the likely future calls on precision munitions, the protection
of his own forces and the logistic questions considered in the previous section)
must be examined. The difference is that, although the security o{ his own
forces remains an important part of this calculation, the need to reduce the risk
to the civilian population means that a commander may be required to accept a
higher degree of risk to his own forces.
Where the proportionality principle differs from the unnecessary suffering
principle is that it is clearly established that it does not stop at the prohibition of
unnecessary collateral injury and damage, but also requires a belligerent to
abstain from an attack altogether, even if that means losing a military
advantage which cannot be obtained by other means, if the military advantage
would not be worth the expected civilian casualties and damage. The principle
of proportionality is thus a more substantial constraint than the unnecessary
suffering principle. Nevertheless, it remains a requirement to balance military
gains against civilian losses; it does not possess an absolute character. In this
respect, the Commentary on Additional Protocol I published by the
International Committee of the Red Cross is misleading when it says that:
The idea has been put forward that even if they are very high, civilian losses and
damage may be justified if the military advantage at stake is of great importance.
This idea is contrary to the fundamental rules of the Protocol. . . . The Protocol
does not provide any justification for attacks which cause extensive civilian
losses and damage. Incidental losses and damage should never be extensive. 78
What the principle of proportionality (as stated in both customary law and
the Protocol) prohibits is the causing of excessive civilian losses and damage. By
substituting the word extensive, the Commentary replaces a term which
necessarily implies a balance between two competing considerations with a
term which suggests an absolute ceiling on civilian losses. There is no basis in
the law for such an approach.
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The Law of Weaponry
The Gulf conflict of 1990-91 demonstrated that the principles which are
designed to protect the civilian population are workable. That conflict,
however, also highlighted the fact that the proportionality test today requires
consideration of a wider range of issues than in the past. In the Gulf conflict,
Coalition air raids and naval bombardment of military targets appear to have
caused relatively few direct civilian losses, but the damage done to the Iraqi
power generating system and other parts of Iraq's infrastructure did far more
harm to the civilian population. Application o( the proportionality test today,
at least at the strategic level, requires that less immediate damage of this kind
must also be taken into account, although the difficulty of doing so is apparent.
The treaty statements o{ the discrimination principles do not apply to naval
warfare except in so far as it involves the civilian population on land.
Nevertheless, it is clear that there are restrictions on targeting in naval warfare. 79
In particular, merchant ships are not automatically to be treated as legitimate
targets unless they engage in certain kinds of behaviour. It has therefore been
suggested in a recent study that the principles of distinction and proportionality
are applicable, mutatis mutandis, as part of the customary law of naval warfare,
with consequent implications for the law of weaponry in a naval context. °
(c) The Prohibition of Perfidy. The principle which prohibits the use of
perfidy is well established in both customary international law and Additional
Protocol I. The somewhat mixed objectives which this principle seeks to
achieve have already been discussed in Part III and little more need be said
here. There is probably no weapon which is inherently perfidious, 81 and the
principle therefore operates entirely upon the methods of warfare.
The humanitarian rationale o{ this principle is concisely set out in Article
37(1) of Additional Protocol I as "inviting the confidence of an adversary to
lead him to believe that he is entitled to, or is obliged to accord, protection
under the rules of international law applicable in armed conflict, with intent to
betray that confidence." The provision then goes on to give the following
examples of perfidy:
(a) the feigning of an intent to negotiate under a flag of truce or of a
surrender;
(b) the feigning of an incapacitation by wounds or sickness;
(c) the feigning of civilian, non-combatant status; and
(d) the feigning of protected status by the use of signs, emblems or
uniforms of the United Nations or of neutral or other States not Parties to
the conflict.
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Christopher Greenwood
Article 38 adds a specific prohibition on the improper use of the emblems
(principally the Red Cross and Red Crescent) of the Geneva Conventions and
internationally recognized protective emblems, such as the flag of truce, as well
as any unauthorized use of the United Nations emblem. 82 By contrast, Article
37(2) provides that:
Ruses of war are not prohibited. Such ruses are acts which are intended to
mislead an adversary or to induce him to act recklessly but which infringe no rule
of international law applicable in armed conflict and which are not perfidious
because they do not invite the confidence of an adversary with respect to
protection under that law. The following are examples of such ruses: the use of
camouflage, decoys, mock operations and misinformation.
As has already been seen, these provisions, which reflect customary
international law, serve a clear humanitarian objective. The prohibition in
Article 39(1) of the use by belligerents of the flags, emblems, and uniforms oi
neutral States or other States not party to the conflict also serves that
objective, since it also seeks to protect persons and objects which would not be
legitimate targets of attack. That is not true, however, of the rule in Article
39(2) which forbids the use of enemy flags and uniforms by a belligerent while
engaging in an attack or in order to shield, favor, protect, or impede military
operations. The objective behind the latter rule is quite different and serves no
obvious humanitarian purpose. 83
Traditionally, the law on ruses in naval warfare has been different. In naval
warfare, the use of enemy flags and signals is entirely legitimate up to the point
at which an attack is commenced. 84 There is, therefore, no equivalent of the
rule in Article 39(2) of Additional Protocol I (which is expressly stated not to
apply to naval warfare). 85 The principles in Articles 37 and 38 of the Protocol
are intended to apply to all forms of warfare, but their application to naval
hostilities necessitates some modification to take account of the different
conditions of naval warfare. The San Remo Manual on International Law
Applicable to Armed Conflicts at Sea states the basic principle of perfidy in the
same terms used in Additional Protocol I, Article 37(1), and adds, as specific
examples of perfidious behavior:
. . . the launching of an attack v/hile feigning:
(a) exempt, civilian, neutral or protected United Nations status;
(b) surrender or distress by, e.g., sending a distress signal or by the crew
taking to life rafts. 86
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The Law of Weaponry
This provision was supported by a large group of experts and is in accordance
with the approach taken in the United States Naval Commander's Handbook* 1
It is open to question, however, whether sub-paragraph (a) reflects customary
law, since the practice of disguising warships as merchant vessels and the use of
Q-ships was extensively practised during the Second World War and there is
no clear practice to the contrary since that date. 88
The San Remo Manual also states that:
Ruses of war are permitted. Warships and auxiliary vessels, however, are
prohibited from launching an attack whilst flying a false flag, and at all times from
actively simulating the status of:
(a) hospital ships, small coastal rescue craft or medical transports;
(b) vessels on humanitarian missions;
(c) passenger vessels carrying civilian passengers;
(d) vessels protected by the United Nations flag;
(e) vessels guaranteed safe conduct by prior agreement between the
parties, including cartel vessels;
(f) vessels entitled to be identified by the emblem of the red cross or red
crescent; or
(g) vessels engaged in transporting cultural property under special
protection. 89
(d) The Principle of Environmental Protection. A number of specific rules of
the law of armed conflict operate, expressly or impliedly, to protect the
natural environment. Thus, the 1977 Environmental Modification Treaty
addresses the potential problem of a belligerent seeking to use the
environment as a means of warfare in itself by prohibiting the use of
environmental modification techniques which have widespread,
long-lasting, or severe effects upon the environment. 90 This treaty, however,
deals with the exceptional case oi the deliberate manipulation o{ the
environment for military purposes, rather than the far more common case of
environmental damage inflicted in the course of ordinary military operations.
To some extent, the prohibition of the wanton destruction of property and
the use of chemical and biological weapons, as well as the restrictions on the
use of land mines and incendiary weapons indirectly protect the
environment. Today, however, it is argued that there is a broader, general
principle of respect for the environment in time of armed conflict. 91
For States party to Additional Protocol I, such a principle is to be found in
Article 35(3), which states that:
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Christopher Greenwood
It is prohibited to employ methods or means of warfare which are intended, or
may be expected, to cause widespread, long-term and severe damage to the
natural environment. 92
This provision was, however, an innovation in 1977 and cannot be regarded as
forming part of customary international law. 93
Nevertheless, there are clear indications that a general principle of
environmental respect is emerging and may well already form part of customary
law. Thus, the 1995 edition of the U.S. Commander's Handbook on the Law of
Naval Operations stipulates that:
It is not unlawful to cause collateral damage to the natural environment during
an attack upon a legitimate military objective. However, the commander has an
affirmative obligation to avoid unnecessary damage to the environment to the
extent that it is practicable to do so consistent with mission accomplishment. To
that end, and as far as military requirements permit, methods or means of warfare
should be employed with due regard to the protection and preservation of the
natural environment. Destruction of the natural environment not necessitated
by mission accomplishment and carried out wantonly is prohibited. Therefore, a
commander should consider the environmental damage which will result from
an attack on a legitimate military objective as one of the factors during target
analysis. 94
In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons ,
the International Court of Justice stated that:
States must take environmental considerations into account when assessing
what is necessary and proportionate in the pursuit of legitimate military
objectives. Respect for the environment is one of the elements that go to
assessing whether an action is in conformity with the principles of necessity and
proportionality. 95
The United Nations General Assembly has expressed similar views. 96 While
the language may be different in each case, the general sense is substantially the
97
same.
(e) Other General Principles. Before leaving the subject of the general
principles, it is necessary to consider whether any other general principle may
have become part of the law of weaponry. There is, of course, the principle that
the right of the parties to an armed conflict to choose the methods and means
of warfare is not unlimited. 98 This principle is not, however, a free-standing
norm, since it gives no indication what the limitations upon the right to choose
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The Law of Weaponry
might be. It serves only to introduce the limitations, both general and specific,
laid down elsewhere in the law.
A more substantial contender is the Martens Clause, which first appeared in
the Preamble to Hague Convention No. II of 1899. The most recent version of
this clause appears as Article 1(2) of Additional Protocol I:
In cases not covered by this Protocol or by other international agreements,
civilians and combatants remain under the protection and authority of the
principles of international law derived from established custom, from the
principles of humanity and from the dictates of the public conscience.
It has sometimes been argued that the use of a particular weapon or method
of warfare might be unlawful, as a result of the Martens Clause, even though it
was not outlawed by any of the general principles or specific provisions of the
law of weaponry." According to this approach, a weapon will be unlawful if its
effects are so contrary to considerations of humanity and the public conscience
that it arouses widespread revulsion. This view is based upon a
misunderstanding of the Martens Clause. There is no doubt that one effect of
the Clause is that the absence of a specific treaty provision does not mean that
a weapon must be lawful; the Clause makes clear that the general principles
embodied in customary law still apply and that the use of a weapon contrary to
those principles will be unlawful. Furthermore, the Martens Clause
undoubtedly states what has frequently been the motivating force behind the
adoption of a specific ban (e.g., those on land mines and laser weapons). There
is no evidence, however, that the use of any weapon has ever been treated by
the international community as unlawful solely on account o{ the Martens
Clause and the Clause should not be regarded as laying down a separate general
principle for judging the legality of weapons under existing law. 100
Finally, it can reasonably be said that the undoubted duty to respect the
territorial integrity of neutral States implies the existence of a general principle
that the belligerents must abstain from the use oi methods and means of
warfare which cause disproportionate damage to the territory of neutral States.
This principle has only very limited significance for the use of weapons other
than nuclear weapons and it is in that context that it will be considered below.
(2) Rules on Specific Weapons. The evolution of the treaty provisions
regulating the use of specific weapons has already been outlined in Part II.
Unlike the general principles o( the law of weaponry, these specific provisions
tend to concentrate upon the means used (e.g., exploding bullets of less than
400 grammes weight, laser weapons, chemical weapons), rather than the
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Christopher Greenwood
effects produced (e.g., unnecessary suffering, disproportionate civilian
casualties). They fall into three broad groups:
• Limitations on the use of a particular weapon which fall short of an
outright ban;
• Bans on the use, but not the possession and, perhaps, not the retaliatory
use, of a particular weapon; and
• Bans on both use and possession.
It is not intended in this paper to try to analyze all of the specific weapons
provisions. Instead, three categories of weapons — laser weapons, land mines,
and chemical weapons — which have been the subject of important legal
changes in the 1990s, and which illustrate the three categories set out above,
will be examined.
(a) The Lasers Protocol In October 1995, a Conference was convened
under the provisions of Article 8(3) of the 1981 Weapons Convention to
review the scope and operation of the Convention and its three Protocols. One
of the items on the agenda of the Review Conference was a proposal for the
adoption o{ a new protocol to the Weapons Convention to ban the use of
anti-personnel laser weapons (a type of weapon not then in common use but
which it was believed would be widely available before long) on the ground that
such weapons would cause permanent blindness. This issue had been under
consideration by the International Committee of the Red Cross for several
years. 101 It had been argued by some commentators that the use of laser
weapons to blind enemy combatants was already prohibited by the unnecessary
suffering principle. 102 That conclusion was challenged, however, by others who
argued that a blinding weapon could not be regarded as causing unnecessary
suffering when the alternative weapons could cause death. 103 In fact, the
arguments are finely balanced and the unnecessary suffering principle probably
does not outlaw the use of anti-personnel lasers as such, although it might
prohibit their use in certain circumstances. 104 In view oi this difference of
opinion and the uncertainty inherent in the application of the unnecessary
suffering principle, the opponents of anti-personnel lasers not surprisingly
decided that it was necessary to seek a specific ban.
In this case, the approach of seeking to eliminate an entire category of
weapons was never an option. Lasers are used on the battlefield for a wide range
of undoubtedly legitimate purposes, including target identification and range
finding, which would not normally involve injury to eyesight and which States
were not willing to abandon. In addition, several States distinguished between
the use of lasers against the human eye and their use against equipment optical
systems, where there was a risk of incidental injury to the human eye.
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The Law of Weaponry
The new agreement, 105 adopted by the Review Conference as Protocol IV to
the Weapons Convention, reflects these views. Article 1 prohibits the
employment of "laser weapons specifically designed, as their sole combat
function or as one of their combat functions, to cause permanent blindness to
unenhanced vision, that is to the naked eye or to the eye with corrective
eyesight devices." The use of laser weapons which do not have as one of their
combat functions the causing of permanent blindness to the naked eye is not,
therefore, prohibited and, if blindness is caused as a collateral consequence of
the use of such a weapon, or the use of other laser systems such as range finders,
there will be no violation of the Protocol. 106 Article 2 of the Protocol, however,
requires the parties to take all feasible precautions, when using laser systems
not prohibited by the Protocol, to avoid causing blindness to the unenhanced
vision of enemy combatants.
The result is a treaty that bans the use of a fairly narrow category of
weapons — laser weapons specifically designed to cause blindness. The use of
other types o( laser weapon, even if it results in blindness, remains lawful. At
the time of writing, the Protocol had not yet entered into force. When it does, it
will be binding only upon those States parties to the Weapons Convention
which opt to become bound by Protocol IV.
(b) Land Mines. Unlike laser weapons, land mines have been the subject of a
sustained campaign during the 1990s to achieve a total ban. Whereas the
concern about blinding laser weapons centered on the unnecessary suffering
principle, the move to ban land mines was motivated more by the effects which
their use had been shown to have upon the civilian population, often long after
the conflict. Nevertheless, while the indiscriminate use of land mines was a
violation of the general principle of distinction, they were also capable of lawful
use, against military targets or as a means of denying an adversary access to an
area of land.
Protocol II to the Weapons Convention already contained limitations on
the use of land mines and booby-traps. 107 So far as mines 108 were concerned, the
original Protocol II limited their use in the following ways:
• By prohibiting their use against civilians and their indiscriminate use
(Article 3), although this added nothing to the general principles on targeting;
• By imposing a more specific restriction on the use of mines in centers of
civilian population where combat was not actually taking place (Article 4);
• By prohibiting the use of remotely delivered mines unless they are used
within an area which is itself a military objective and either their location is
accurately recorded or they are fitted with a self-neutralizing mechanism which
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Christopher Greenwood
will render the mine harmless or destroy it when it no longer serves the military
purpose for which it was laid (Article 5); and
• By requiring the recording and publication of the location of minefields
and co-operation in their removal after a conflict (Articles 7 and 9).
The provisions o( the Protocol are very limited. Only Article 5 imposed a
substantial limitation and this is "clumsily worded." 109 Not surprisingly, these
provisions were widely regarded as insufficient in view of the devastating effects
of land mines — often continuing for many years after the end o{ active
hostilities. 110 A number of States therefore pressed for a complete ban on land
mines, while others urged the Review Conference to tighten the restrictions in
Protocol II.
The first result was the adoption in 1996 of an amended Protocol II 111 which
goes some way towards tightening the restrictions on the use of land mines and
increasing the protection of the civilian population. The most important
changes introduced by the amendments are as follows:
• A ban on the use of various devices which make mine clearance more
dangerous (Article 3(5) and (6));
• A ban on the use of anti-personnel mines which are not detectable, as
specified in the technical annex to the Protocol (Article 4);
• Restrictions on the use of mines which do not meet the requirements in
the technical annex (Article 5). The technical annex requires that mines
produced after 1 January 1997 must meet certain requirements regarding
detection and self-neutralization and their location must be carefully recorded;
• Stricter constraints on the use of remotely delivered mines (Article 6);
• Stricter rules for the protection of peacekeepers and others not directly
involved in the conflict (Article 12) and for the protection of civilians (Article
3(8) to (11));
• A more extensive obligation regarding mine clearance after the conflict
(Articles 10 and 11); and
• A prohibition on the transfer of mines which do not meet the
requirements of the Protocol and limitations on the transfer of mines which do
meet those requirements (Article 8).
The amended Protocol II is thus considerably more stringent than the original
Protocol. Whether it will succeed in significantly reducing the threat posed to
civilians by mines is another matter. One of the biggest threats to civilians is the
large numbers of old mines, readily available and cheap, which do not meet the
requirements of the amended Protocol and which are likely to be used by
untrained personnel. This risk is particularly acute in civil wars; indeed, it is in
the civil wars in Angola and Cambodia that some of the worst casualties from
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The Law of Weaponry
land mines have been sustained. It is therefore an important development that
the amended Protocol is expressly applied to internal armed conflicts within
the meaning of common Article 3 of the Geneva Conventions, where it applies
both to the government and rebel parties. 112 Since the other Protocols to the
Weapons Convention contain no provision on the scope of their application,
they apply only in the circumstances specified in Article 1 of the Weapons
Convention itself, namely international armed conflicts, including wars of
"national liberation" as defined in Article 1 (4) of Additional Protocol I to the
Geneva Conventions. It has, however, been suggested, notwithstanding the
absence of any express provision regarding internal conflicts in the new Protocol
IV, that Protocol was also intended to apply to internal armed conflicts, 113
although no trace of such an understanding is to be found in its text.
The amended Protocol II did not go far enough for a large |pody of States.
They aimed instead at a complete ban on the use and transfer of land mines
and, to that end, adopted a separate treaty in 1997. The United Nations
Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and on their Destruction, as its name
suggests, is a complete ban on the use of anti-personnel land mines. 114 The
Convention, the Preamble of which echoes the language of the Martens Clause
and refers specifically to both the unnecessary suffering principle and the
principle of distinction, goes beyond a ban on the use of anti-personnel mines
"in all circumstances" and bans their production, stockpiling, and possession,
as well as the transfer of such mines to others. The definition of an
anti-personnel mine, however, excludes mines "designed to be detonated by
the presence, proximity or contact of a vehicle as opposed to a person," even if
equipped with anti-handling devices. 115 The Convention requires that all
parties take steps, including the imposition of penal sanctions, to ensure
implementation of its provisions. 116 While the conclusion of this Convention
was a triumph for the opponents of land mines, its effectiveness is likely to be
limited as a number of major military powers have declined to participate.
Once the 1997 Convention and the amended Protocol II enter into force,
there will be a complex network of obligations regarding land mines:
• States party to the 1997 Convention will be obliged not to employ
anti-personnel land mines in any circumstances, even in hostilities with States
not party to the Convention;
• States party to the 1 980 Conventional Weapons Convention which elect
to become party to the amended Protocol II will be bound by that Protocol in
their relations with other States party to the 1980 Convention which have
accepted that Protocol;
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Christopher Greenwood
• States party to the 1 980 Conventional Weapons Convention which elect
not to become party to the amended Protocol II will remain bound by the
original Protocol II in their relations with other parties which have made the
same choice; and
• States not party to the 1980 Convention or which have not accepted
either version of Protocol II will remain subject in their use of land mines only
to the customary law general principles on unnecessary suffering and
distinction and other States will be subject to the same regime in their relations
with such States (unless, of course, they are parties to the 1997 Convention).
As students o{ the law will doubtless testify, multiplicity of law making bodies
has its price.
(c) Chemical Weapons. By far the most important development in the law of
weaponry during the last decade of the twentieth century has been the adoption
in 1993 of a new Chemical Weapons Convention. 7 The use of chemical
weapons in warfare had already been prohibited by the 1925 Geneva Protocol. 118
That prohibition, however, was incomplete in a number of respects. In
particular, so many States had entered reservations to the 1925 Protocol, to the
effect that they retained the right to use chemical weapons if those weapons were
first used against themselves or their allies, that the Protocol was, in reality, only
a ban on the first use o( such weapons. 119 The use of chemical weapons by Iraq,
first against Iranian armed forces and later against parts o( Iraq's own civilian
population, during the Iran-Iraq war, 120 and the threats by Iraq to use chemical
weapons during the Kuwait conflict, 121 highlighted the weakness of the existing
legal regime. The prohibition on the use of chemical weapons was reaffirmed by a
declaration adopted by 149 States at the Paris Conference in January 1989.
Subsequent negotiations led to the adoption of the new convention in 1993. The
Convention entered into force in April 1997.
The 1993 Convention establishes a legal regime far more extensive than
that contained in the 1925 Protocol and customary international law. While
space does not permit a detailed analysis of the provisions of the 1993
Convention here, 122 three points call for comment. First, the scope of the 1993
Convention is broader than that of the 1925 Protocol. The range of weapons
covered by the 1925 Protocol had long been the subject of debate, with the
United States, and latterly the United Kingdom, arguing that non4ethal riot
control agents lay outside the scope of the Protocol, 123 an interpretation
contested by many other States. The new Convention expressly prohibits the
use of riot control agents "as a method of warfare." 124 While this prohibition
still leaves some room for debate about whether a particular use of riot control
agents (for example, to suppress a riot at a prisoner of war camp or to deal with
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The Law of Weaponry
demonstrators in occupied territory) constitutes their use "as a method of
warfare," it clearly outlaws the use of riot control agents against enemy forces in
combat or in bombardment of enemy targets. In addition, the obligation placed
upon States parties by Article I, paragraph 1, never to use chemical weapons
"under any circumstances" applies to non-international armed conflicts, as
well as to conflicts between States. 125 While it had been argued by some States
and commentators that the prohibition in the 1925 Protocol was also
applicable to non-international conflicts, 126 the matter was not free from doubt
and the greater clarity of the new Convention is thus most welcome.
Secondly, the 1993 Convention prohibits all use of chemical weapons in
warfare, not just their first use. The obligation never to use chemical weapons
in any circumstances, contained in Article I, was intended to exclude the
operation of the doctrine of belligerent reprisals as a justification for employing
chemical weapons. In addition, Article XXII provides that the Convention is
not subject to reservations, so that there is no scope for States to become
parties subject to the kind of reservations which many entered on becoming
parties to the 1925 Protocol. That does not mean that a State which was the
victim of a chemical attack in violation of the Convention may not retaliate.
The Convention prohibits retaliation in kind, in the form of a chemical
counter-attack, but it does not affect the right of States to retaliate by other
means. In this context, a particularly important question is whether a State
could lawfully resort to the use of a nuclear weapon in response to a chemical
attack. This possibility was considered at some length by Judge Schwebel in his
dissenting opinion in the Nuclear Weapons case, where he discussed the threat
of nuclear retaliation allegedly made by the United States to dissuade Iraq from
resorting to chemical weapons during the Kuwait conflict. 127 In the writer's
view, the Court's advisory opinion in the Nuclear Weapons case leaves open the
question whether such a reprisal would be lawful.
Finally, the 1993 Convention goes far beyond a prohibition on the use of
chemical weapons and outlaws their manufacture, acquisition, stockpiling, and
transfer. 128 It also requires States to destroy their existing stocks. 129 The
Convention creates a complex regime of inspection and verification, which
goes beyond that envisaged by the Land Mines Convention, the object of
which is to guarantee that chemical weapons are completely eliminated. This
ambitious project takes the Convention out o( the scope o( the law of armed
conflict and into the realm of arms control. It remains to be seen whether some
of the doubts expressed about the effectiveness of this regime can be overcome
and the goal o( the Convention attained.
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(3) Nuclear Weapons, 130 Nuclear weapons merit separate consideration, both
because of their inherent importance and because of the intensity of the debate
about whether their use could ever be compatible with the law of weaponry.
Those who argue that it could not have tended to base their case on one or
more of three propositions.
• That there exists in international law a specific prohibition of the use of
nuclear weapons. Since there is evidently no treaty of general application
containing such a prohibition, this argument is based upon a series of
resolutions adopted by the United Nations General Assembly over the years; l
• That one of the other specific prohibitions applies directly, or by analogy,
to nuclear weapons. The prohibitions on which reliance is usually placed being
those on chemical weapons and poisoned weapons; and
• That any use of nuclear weapons would inevitably violate one or more of
the general principles of the law of weaponry.
These arguments have been fully canvassed both in the literature 132 and in the
submissions of certain States to the International Court of Justice in the
proceedings on the request for an Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons. 133
Those who take a contrary view do not, for the most part, deny that the law
of weaponry is applicable to nuclear weapons. Indeed, it is striking that none of
the nuclear-weapon-States which made submissions to the International Court
of Justice took such a position. 134 The only respect in which the law of
weaponry does not apply to nuclear weapons is that the innovative provisions
introduced by Additional Protocol I were adopted on the understanding that
they would not apply to the use of nuclear weapons. 135 They maintain,
however, that there is no specific prohibition of the use of nuclear weapons in
international law, that the prohibitions on chemical weapons and poison do
not extend to nuclear weapons, and that it is possible to envisage
circumstances in which nuclear weapons could be used without violating the
general principles.
In some respects, the Court's Advisory Opinion has clarified the issues in
this debate. 136 The Court found (by eleven votes to three) that there was no
specific prohibition of nuclear weapons, the majority taking the view that the
General Assembly resolutions were insufficient to create a rule of customary
international law in view of the strong opposition and contrary practice of a
significant number of States. 137 The Court also rejected the argument that
nuclear weapons were covered by the prohibitions on chemical weapons or
poisoned weapons. The Court found that the various treaties on chemical and
biological weapons had "each been adopted in its own context and for its own
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reasons" and concluded that the prohibition of other weapons of mass
destruction did not imply the prohibition of nuclear weapons, while the ban on
poisoned weapons had never been understood by States to apply to nuclear
us
weapons.
Given the Court's conclusions on these points (which, it is submitted, are
manifestly correct), the Court necessarily concentrated on the application to
nuclear weapons of the general principles. The Court referred, in particular, to
the prohibition of weapons calculated to cause unnecessary suffering, the
prohibition of attacks upon civilians and of the use of indiscriminate methods
and means of warfare, and the principle protecting neutral States from
incursions onto their territory. Although the Court noted that the use of
nuclear weapons was "scarcely reconcilable" with respect for these principles, it
concluded that it did not have:
[Sufficient elements to enable it to conclude with certainty that the use of
nuclear weapons would necessarily be at variance with the principles and rules of
law applicable in armed conflict in any circumstance. 139
This passage suggests that the Court should therefore have concluded that the
use of nuclear weapons was not unlawful in all circumstances. In fact, however,
it adopted, by seven votes to seven on the casting vote of the President, the
following conclusion:
It follows from the above-mentioned requirements that the threat or use of
nuclear weapons would generally be contrary to the rules of international law
applicable in armed conflict, and in particular the principles and rules of
humanitarian law;
However, in view of the current state of international law, and of the elements of
fact at its disposal, the Court cannot conclude definitively whether the threat or
use of nuclear weapons would be lawful or unlawful in an extreme circumstance
of self-defence, in which the very survival of a State would be at stake. 140
The Opinion is not easy to follow at this point. In the absence of a specific
prohibition of the use of nuclear weapons, the only basis upon which the Court
could have concluded, consistently with its own earlier reasoning, that such
use was illegal in all circumstances would have been by analyzing the
circumstances in which nuclear weapons might be used and then applying the
principles of humanitarian law which were relevant. At the heart of any such
analysis would have been three questions.
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Christopher Greenwood
• Would the use of a nuclear weapon in the particular circumstances inflict
unnecessary suffering upon combatants?
• Would the use of a nuclear weapon in the particular circumstances be
directed against civilians or indiscriminate, or, even if directed against a
military target, be likely to cause disproportionate civilian casualties ?
• Would the use of a nuclear weapon in the particular circumstances be
likely to cause disproportionate harmful effects to a neutral State ?
To answer those questions would have required both a factual appreciation of
the capabilities of the weapon being used and the circumstances of its use and a
value judgement about whether the adverse consequences of that use were
"unnecessary" or "disproportionate" when balanced against the military goals
which the State using the nuclear weapon was seeking to achieve.
The Court did not, however, attempt that task but merely enumerated the
relevant principles, with little discussion, before reaching the conclusions
quoted above. 141 It is not clear, therefore, how it arrived at its conclusion that
the use of nuclear weapons would "generally be contrary to the rules of
international law applicable in armed conflict," nor, indeed, what it meant by
the term "generally" in this context. It is clear, both from the voting on
paragraph 2E of the dispositif and from some of the separate and dissenting
opinions, that there was a considerable divergence of views within the Court.
Nevertheless, if one looks at the Opinion as a whole, the only interpretation
of the first part of paragraph 2E which can be reconciled with the reasoning of
the Court is that, even without the qualification in the second part o{ the
paragraph, the Court was not saying that the use of nuclear weapons would be
contrary to the law of armed conflict in all cases. It could only have reached
such a conclusion if it had found that there were no circumstances in which
nuclear weapons could be used without causing unnecessary suffering, striking
civilians and military targets indiscriminately (or with excessive civilian
casualties), or causing disproportionate damage to neutral States. The Court
did not make such an analysis, and the reasoning gives no hint that it reached
such a conclusion. Indeed, it is difficult to see how it could have done so. In
considering the application of principles of such generality to the use of
weapons in an indefinite variety of circumstances, the Court could not have
determined that as a matter oilaw a nuclear weapon could not be used without
violating one or more of those principles, 142 even if some o( its members
suspected as a matter oijact that that was so.
This reading of the Opinion is reinforced by the fact that there is only one
other basis upon which the second part of paragraph 2E of the dispositif could
make sense. That is that, although the use of nuclear weapons would always be
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The Law of Weaponry
contrary to the law of armed conflict, the Court was not prepared to exclude
the possibility that there might be circumstances in which the right of a State to
self-defense could override the prohibition imposed by the law o{ armed
conflict. Although that interpretation has received a measure of support, 143 it
flies in the face of the long established principle that the law of armed conflict
applies equally to both sides in a conflict. To hold that the party exercising the
right of self -defense can depart from fundamental principles of the law of armed
conflict would drive a coach and horses through that principle. 144
The Court's Opinion has attracted an enormous amount of interest among
academic commentators. It is a mark of the ambiguity of the Opinion in general
and o( paragraph 2E in particular, that some commentators have seen it as
largely vindicating the position of the nuclear-weapons States, while others
have claimed it as a victory for the anti-nuclear lobby. 145 The present writer
finds the analysis of the first group the more persuasive.
V. The Applicability to Weaponry of Other Rules of International Law
It is tempting to take the view that once States resort to the use of force, the
law of armed conflict, as lex specialis, takes over from all other parts of
international law. On this view, the use of methods and means of warfare is
governed exclusively by the law o( weaponry. In practice, however, that law
does not operate in isolation and the rest of international law cannot be
disregarded in determining whether the use of a particular weapon is lawful.
Three other areas of international law, all of which were considered by the
International Court of Justice in its Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons, are potentially relevant.
First, it has sometimes been suggested that the use of particular weapons,
especially nuclear weapons, would violate the right to life under human rights
treaties. 146 The United Nations Human Rights Committee, for example, has
commented that "the designing, testing, manufacture, possession and
deployment of nuclear weapons are amongst the greatest threats to the right
to life which confront mankind today." 147 However, warfare invariably
involves the taking o( life and it is clear that the human rights treaties were
not intended to outlaw all military action even in self-defense. By prohibiting
the arbitrary taking of life, Article 6 of the 1966 International Covenant on
Civil and Political Rights, and the comparable provisions in other human
rights treaties, imply that not all taking of life is prohibited. The travaux
preparatoires of Article 6 make clear that, in the context of warfare, the term
"arbitrary" was intended to mean the taking of life in circumstances which
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Christopher Greenwood
were contrary to the law of armed conflict, and killing in the course of a "lawful
act of war" was expressly given as an example of a taking of life that would not
be arbitrary. 148
This was the view taken by the International Court of Justice in the Nuclear
Weapons case. The Court accepted that the protection of the International
Covenant (and, by implication, other human rights treaties) did not cease in
time of armed conflict but held that:
The test of what is an arbitrary deprivation of life, however, then falls to be
determined by the applicable lex specialis, namely, the law applicable in armed
conflict, which is designed to regulate the conduct of hostilities. Thus whether a
particular loss of life, through the use of a certain weapon in warfare, is to be
considered an arbitrary deprivation of life contrary to Article 6 of the Covenant,
can only be decided by reference to the law applicable in armed conflict and not
deduced from the terms of the Covenant itself. 149
This conclusion, though no doubt unwelcome to some human rights
lawyers, is plainly correct in view both of State practice and the travaux
preparatoires o( the Covenant. Nevertheless, the Court's acceptance that
human rights treaties continue to apply in time of war (except insofar as
derogation is expressly permitted) may be of considerable importance in other
cases. Although the right to life may add nothing to international
humanitarian law at the substantive level, human rights treaties contain
unique mechanisms for enforcement which may be of great assistance to
individuals seeking to rely upon the right to life in order to show that there has
been a violation of the law of armed conflict. 150
Secondly, it has been suggested, again primarily in relation to nuclear
weapons, that international environmental law is applicable to the use of
weapons. 151 In the Nuclear Weapons case, the Court stated that "the issue is not
whether the treaties relating to the protection of the environment are or are
not applicable during an armed conflict, but rather whether the obligations
stemming from these treaties were intended to be obligations of total restraint
during military conflict." 152 It rejected the argument that the use of nuclear
weapons was prohibited as such by the general environmental treaties or by
customary environmental law. 153 It would have been extraordinary for the
Court to have concluded that nuclear weapon States, which had so carefully
ensured that treaties on weaponry and the law of armed conflict did not outlaw
the use of nuclear weapons, had relinquished any possibility of their use by
becoming parties to more general environmental agreements. Nevertheless,
the Court indicated that the international law on the environment does not
217
The Law of Weaponry
altogether cease to apply once an armed conflict breaks out, and it seems that it
found the origins of what it identified as a customary law duty of regard for the
environment in times of war 154 as much in the general law on the environment
as in the specific provisions of the law of armed conflict.
Finally, the Nuclear Weapons case confirms that:
A threat or use of force by means of nuclear weapons that is contrary to Article 2,
paragraph 4 of the United Nations Charter and that fails to meet all the
requirements of Article 51, is unlawful. 155
This proposition was not contested by any o{ the States which submitted
arguments to the Court.
The Court held that the right of self-defense under Article 51 of the Charter
was subject to the limitations of proportionality and necessity which it had
earlier held, in the Nicaragua case, 156 were part of the right of self-defense at
customary international law. 157 It also concluded that, although neither Article
2(4) nor Article 51 refers to specific weapons, the need to ensure that a use of
force in self-defense was proportionate had implications for the degree of force
and, consequently, for the weaponry which a State might lawfully use. The
proportionality requirement of self-defense thus had an effect upon the legality
of the way in which a State conducted hostilities. In determining whether the
use of a particular weapon in a given case was lawful, it was therefore necessary
to look at both international humanitarian law and the requirements of the
right of self-defense.
The Court's opinion on this point is of considerable importance. The logic
of the Charter and customary law provisions on self-defense means that the
modern jus ad bellum cannot be regarded as literally a "law on going to war,"
the importance of which fades into the background once the fighting has
started and the jus in bello comes into operation. 158 The jus ad bellum imposes
an additional level o{ constraint upon a State's conduct of hostilities,
affecting, for example, its choice o( weapons and targets and the area of
conflict. The Court did not, however, accept, as some commentators had
argued, that the use of nuclear weapons could never be a proportionate
measure of self-defense. 159 In reaching this conclusion, it appears to have
accepted that proportionality has to be assessed, as Judge Higgins put it, by
considering "what is proportionate to repelling the attack" and not treated as
"a requirement of symmetry between the mode oi the initial attack and the
mode of response." 160
It is evident, therefore, that the legality of the methods and means of warfare
can no longer be considered by reference to the law of weaponry alone.
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Christopher Greenwood
Especially when one considers the more destructive weapons, the law of the
United Nations Charter will be a significant factor to be borne in mind. Human
rights law and international environmental law may also have some
importance, although their application is likely to have only a small impact on
the substantive law applicable to the use of particular weapons.
VI. The Future of the Law of Weaponry
•
This stocktaking of the law of weaponry at the end of the twentieth century
shows that this part of the law of armed conflict, while not one of the most
effective, cannot be disregarded as an anachronism. The adoption of new
treaties on weapons of real military significance, such as chemical weapons and
land mines, demonstrates that it is possible to develop legal regimes which, if
they are made to function properly, can have a significant impact in protecting
the values of humanitarian law. Similarly, the Advisory Opinion on Nuclear
Weapons, whatever its shortcomings, shows that the general principles of the
law are capable of developing in such a way that they can be applied to new
types of weapon. How then is the law likely to evolve as we enter the new
millennium?
The outline oi two developments is already visible. First, the trend of
extending the law of weaponry from international armed conflicts to conflicts
within States is likely to prove irreversible. Application to such conflicts has
already been the subject of express provision in the two latest agreements on
land mines and the Chemical Weapons Convention. In addition, the logic of
the position taken by the International Criminal Tribunal for the Former
Yugoslavia in the Tadic case and the general trend towards the development of
the law of internal conflicts means that most, if not all, of the law of weaponry is
likely to become applicable in internal conflicts in time. There is every reason
why this should be so. While arguments against extending parts of the law of
international armed conflicts, such as those which create the special status of
prisoners of war, to internal hostilities have some force, there is no compelling
argument for accepting that a government may use weapons against its own
citizens which it is forbidden to use against an international adversary, even in
an extreme case of national self-defense.
Secondly, it seems probable that the concept of penal sanctions for those
who violate the law of weaponry will become far more important in the future.
The Chemical Weapons Convention and the 1997 Land Mines Convention
both make express provision for the enactment of criminal sanctions. 161
Certain violations of the principle of distinction are included in the grave
219
The Law of Weaponry
breaches regime by Additional Protocol I, Article 85. Moreover, any serious
violation of the laws of war is already a war crime and this would include a
serious violation of one of the weaponry treaties or a general principle such as
that prohibiting unnecessary suffering. However, the existence of the two ad
hoc criminal tribunals and the development of their jurisprudence, together
with the likelihood of a future permanent international criminal court with an
extensive war crimes jurisdiction, means that these sanctions are likely to be far
more significant in the future. How far this is a desirable development is
another matter. While the present writer strongly supports the principle of
effective criminal sanctions for violations of the law of armed conflict, it has
been seen that the general principles of the law of weaponry — and, indeed,
some of the specific provisions — are far from clear or easy to apply. It would be
quite wrong to hold individual servicemen, especially low down the chain of
command, criminally responsible for the good faith use of weapons with which
their government has provided them. Moreover, the preparatory talks on the
international criminal court have shown a disturbing tendency to try to use the
negotiation of the Court's statute as a way of revising the substantive law on
weaponry, thus risking upsetting the work of more specialized conferences.
It is less easy to speculate as to what weapons might be made the subject of
new agreements for the prohibition or limitation of their use. Incendiary
weapons, fuel-air explosives, and napalm have all attracted considerable
opprobrium over the last part of the twentieth century and are likely to face
further calls for their limitation or outright prohibition. The precedent of the
campaign against land mines, which attracted far greater publicity than do
most developments in the law of armed conflict, suggests that future calls for
changes in the law of weaponry may come as much from NGOs and public
opinion as from governments. Such a change is both desirable and in keeping
with the spirit of the Martens Clause. It carries the danger, however, that some
of these calls will be unrealistic both in failing to recognize that States must be
able to defend themselves and in the expectations which they create about
what can be achieved.
One of the most important issues is likely to be the future of nuclear
weapons. The inconclusive Opinion of the International Court of Justice
included a unanimous finding that:
There exists an obligation to pursue in good faith and bring to a conclusion
negotiations leading to nuclear disarmament in all its aspects under strict and
effective international control. 162
220
Christopher Greenwood
Although this paragraph adds little of substance to the Non-Proliferation
Treaty, it has already led to calls for fresh negotiations on nuclear
disarmament. In this writer's view, attempts to achieve a ban on the use of
nuclear weapons are unlikely to succeed in the foreseeable future and would
probably prove Counter-productive in that they will block progress in other
areas (as happened with attempts to reform the law of armed conflict in the
1950's). As far as the possession of nuclear weapons is concerned, a ban is likely
to prove possible only if all the nuclear-weapons States (declared and
undeclared) support it, and such a result could not be achieved without
simultaneous progress on a range of related security issues.
One of the most important developments may well prove to be the
application to new types of weaponry of the existing general principles. The
Advisory Opinion in the Nuclear Weapons case has demonstrated that these
principles are capable of being applied to weapons of a kind which was beyond
contemplation when those principles were first developed. The flexibility of
the general principles thus makes them of broader application than the specific
provisions which are all too easily overtaken by new technology. If the speed of
change in military technology continues into the next century (as seems almost
inevitable), 163 that capacity to adapt is going to be ever more important.
Take one example. Suppose that it became possible for a State to cause
havoc to an enemy through the application of electronic measures or the
selective planting of computer viruses which brought to a standstill whole
computer systems and the infrastructure which depended upon them. Such a
method of warfare would appear to be wholly outside the scope of the existing
law. Yet that is not really so. The application of those measures, though not
necessarily an "attack" within the meaning of Additional Protocol I because no
violence need be involved, 164 is still likely to affect the civilian population and
possibly to cause great damage and even loss of life amongst that population.
As such, it should be subject to the same principles of distinction and
proportionality considered above.
The application of the general principles of such forms of warfare would,
however, require a measure of refinement of those principles. The place in the
concept of proportionality which should be given to indirect, less immediate
harm to the civilian population would have to be resolved. Similarly, if the
principle of distinction is to be applied to existing, let alone new, weapons of
naval warfare, a clearer assessment needs to be made of exactly what
constitutes a legitimate target in naval hostilities. Both the military and
humanitarian aspects of the unnecessary suffering principle need to be clarified
if that principle is to have a significant impact in the assessment of new
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The Law of Weaponry
methods and means of warfare. The duty which States have to scrutinize
developments in weaponry and to assess whether any new weapons or methods
of warfare comply with the law 165 means that the resolution of such questions is
a matter of considerable importance.
In this writer's opinion, it is both more probable and more desirable that the
law will develop in this evolutionary way than by any radical change. With the
law of weaponry, as with most of the law of armed conflict, the most important
humanitarian gain would come not from the adoption of new law but the
effective implementation of the law that we have. That should be the priority
for the next century.
Notes
1. For example, the Second Lateran Council in 1139 attempted to ban the crossbow.
Prohibitions of particular weapons or methods of warfare are to be found in several different
traditions. See UNESCO, INTERNATIONAL DIMENSIONS OF HUMANITARIAN LAW (1988) , and
Waldemar A. Solf, Weapons, in 4 RUDOLF BERNHARDT ET AL, ENCYCLOPAEDIA OF PUBLIC
INTERNATIONAL LAW 352 (1982) . The more recent history of this area of the law is discussed in
Frits Kalshoven, Arms, Armaments and. International Law, 191 RECUEIL DES COURS 185-341
(1985-11). Strictly speaking, the "means of warfare" refers to the weapons themselves, whereas
the "methods of warfare" refers to the ways in which those weapons are used. The term "the law
of weaponry" is here used to describe the legal rules and principles relating to methods and means
of warfare.
2. This principle is discussed in Part IV, infra.
3. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of July 8, 1996) ,
1996 I.C.J. 226.
4. Respect For Human Rights in Armed Conflicts: Existing Rules of International Law
Concerning the Prohibition or Restriction of Use of Specific Weapons, U.N. Doc. A/9215, vol. I,
at 204 (1973). The list was based upon the entries in national manuals of military law. See, e.g.,
United Kingdom War Office, The Law of War on Land (Part III of the Manual of
Military Law) 110(1958).
5. Sir Hersch Lauterpacht, Oppenheim's International Law 340-1 (7th ed.
1952).
6. Geneva Protocol Prohibiting the Use in War of Asphyxiating, Poisonous or other Gases
and of Bacteriological Methods ofWarfare, June 17, 1925, 26 U.S.T. 571 (1975), 94 L.N.T.S. 65
[hereinafter Geneva Gas Protocol] ; Convention on the Prohibition of Development, Production
and Stockpiling of Bacteriological (Biological) and Toxin Weapons and their Destruction, April
10, 1972, 26 U.S.T. 583 (1975), 1015 U.N.T.S. 164 [hereinafter Bacteriological and Toxin
Weapons Convention]; Convention on the Prohibition of Development, Production,
Stockpiling and Use of Chemical Weapons and on their Destruction, Jan. 13, 1993, 32 I.L.M.
800 (1993) [hereinafter Chemical Weapons Convention].
7. Additional Protocol No. IV on Blinding Laser Weapons, Oct. 13, 1995 [hereinafter
Lasers Protocol] to the Convention on Prohibitions or Restrictions on Certain Conventional
Weapons which may be Deemed to be Excessively Injurious or to Have Indiscriminate Effects,
222
Christopher Greenwood
35 I.L.M. 1218 (1996) [hereinafter Conventional Weapons Convention]. The Convention itself
is at 19 LLM. 1523(1980).
8. Additional Protocol II on Mines, Booby-Traps and Other Devices to the Conventional
Weapons Convention, 1980, 19 I.L.M. 1523 (1980) [hereinafter Original Mines Protocol],
Amended Additional Protocol II, May 3, 1996, 35 I.L.M. 1206 (1996) [hereinafter Amended
Mines Protocol] and the United Nations Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on their Destruction, Sept. 18, 1997, 36
I.L.M. 1507 (1997) [hereinafter Land Mines Convention].
9. Legality of the Threat or Use of Nuclear Weapons , supra note 3.
10. See William J. Fenrick, The Development of the Law of Armed Conflict through the
Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, and Theodor Meron,
War Crimes Law for the Twenty-First Century, both in this volume.
11. U.S. War Dep't, General Orders No. 100, April 24, 1863, reprinted in THE LAWS OF
ARMED CONFLICTS 3 (Dietrich Schindler & Jiri Toman eds., 3d ed. 1988).
1 2. Id., art. 16. For a discussion of this aspect of the Code, see Burrus M. Carnahan, Lincoln,
Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity, 92 AM. J.
INT'LL. 213 (1998).
13. Brussels Conference, Project of an International Declaration Concerning the Laws and
Customs of War, 1874, Arts. 12 & 13, 65 Brit, and Foreign State Papers (1873-74) 1005,
reprinted in THE LAWS OF ARMED CONFLICTS, supra note 11, at 25. The declaration never
entered into force.
14- Institute of International Law, Manual of the Laws of War on Land, 5 ANNUAIRE DE
L'insitut de Droit International 156 (1881-82), reprinted in The Laws of armed
Conflicts, supra note 1 1, at 35.
15. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400
Grammes Weight, 1868, 58 Brit, and Foreign State Papers (1867-68) 16 [hereinafter St.
Petersburg Declaration], reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 101.
16. Regulations Respecting the Laws and Customs of War on Land annexed to Hague
Convention No. IV, Oct. 18, 1907, 2 U.S.T. 2269, reprinted in THE LAWS OF ARMED
CONFLICTS, supra note 1 1, at 63 [hereinafter Hague Regulations] . The 1907 Regulations were a
revised version of an earlier set of regulations annexed to Hague Convention No. II, July 29,
1899, 2 U.S.T. 2042, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 63.
17. 1 AM. J. INT'L L. 155 (1907 Supp.), reprinted in THE LAWS OF ARMED CONFLICTS,
supra note 11, at 105
18. Id. at 157, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 109.
19. Id. at 153, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 201. The
Declaration was renewed in 1907 until the opening of the Third Peace Conference, an event
which has never occurred. 2 AM. J. INTL L. 216 (1908 Supp.), reprinted in THE LAWS OF
ARMED CONFLICTS, supra note 11, at 201. This Declaration is no longer regarded as being in
force and, unlike the other two, is not considered to be declaratory of a rule of customary
international law.
20. Hague Regulations, supra note 16.
21. T.S. No. 541 , reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1 1, at 803. For
a particularly interesting discussion of this treaty, see HOWARD S. LEVIE, MINE WARFARE AT
SEA (1991).
22. Supra note 6.
23. Supra note 6.
24. Supra note 6.
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The Law of Weaponry
25. Geneva Convention No. I for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 3 1 (1950) ; Geneva
Convention No. II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 (1950);
Geneva Convention No. Ill Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6
U.S.T. 3316, 75 U.N.T.S. 135 (1950); and Geneva Convention No. IV Relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287
(1950) . The four Conventions are reprinted in THE LAWS OF ARMED CONFLICT, supra note 1 1 ,
at 373, 401, 423, & 495, respectively.
26. Additional Protocol I, Relating to the Protection of Victims of International Armed
Conflicts, 1125 U.N.T.S. 3 (1979), 16 I.L.M. 1391 (1977) [hereinafter Additional Protocol I];
Additional Protocol II, Relating to the Protection of the Victims of Non- International Armed
Conflicts, 1125 U.N.T.S. (1979) 609, 16I.L.M. 1391 (1977), reprinted in THE LAWS OF ARMED
CONFLICT, supra note 1 1, at 621 & 689.
27. Additional Protocol I, supra note 26, art. 35(1) & (2).
28. Id., arts. 51(2)-(5), 52(1) & (2). Most of these provisions reflect customary law,
although that is not true of the prohibition of reprisals against civilian objects in Article 52(1) See
Christopher Greenwood, The Customary Law Status of the 1977 Additional Protocols, in
Humanitarian Law of Armed Conflict: Challenges Ahead 93 (Astrid Dehssen &
Gerard Tanja eds., 1991).
29. Additional Protocol I, supra note 26, arts. 35(3) & 55.
30. 31 U.S.T. 333, 1108 U.N.T.S. 151 (1978), reprinted in THE LAWS OF ARMED
CONFLICT, supra note 11, at 163 thereinafter the ENMOD Convention!.
31. Supra note 7.
32. Supra notes 7 & 8.
33. U.N. Charter art. 51.
34- See Legality of the Threat or Use of Nuclear Weapons, supra note 3, at 262-3.
35. This principle, like the others mentioned in the present paragraph, is discussed in
greater detail in Part IV, infra.
36. Additional Protocol I, supra note 26, art. 38.
37. Additional Protocol I, supra note 26, art. 39(2). This provision goes beyond the rules of
customary law, which prohibited the wearing of enemy uniforms only during an attack itself. See
United States v. Skorzeny, 9 War Crimes Reports 90. The fact that the law of naval warfare is
entirely different from the law of war on land in relation to this matter is a further illustration of
the absence of any clear humanitarian purpose behind this rule; see text accompanying notes
81-9 infra.
38. See text accompanying notes 7-8 supra.
39. The Conference also unanimously adopted a resolution to the effect that "the
Conference is of the opinion that the restriction of military charges, which are at present a heavy
burden on the world, is extremely desirable for the increase of the moral and material welfare of
mankind." A. PEARCE HlGGINS, THE HAGUE PEACE CONFERENCES 67 (1909).
40. Kalshoven, supra note 1, at 214-15.
41. Chemical Weapons Convention, supra note 6. See also the discussion in Part IV, infra.
42. The same was true of the reaction to early firearms. See LESLIE C. GREEN, THE
Contemporary Law of armed Conflict 122-3 (1993).
43. Records of the First Hague Peace Conference, published by the Netherlands Ministry of
Foreign Affairs, 1907, Part II, at 65.
44. See Part IV, sect. 2, infra.
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Christopher Greenwood
45. Prosecutor v. Tadic Ourisdiction), 105 I.L.R. 419, 504-20 (1995). For comment, see the
article by Fenrick, supra note 10, and Christopher Greenwood, International Humanitarian Law
and the Tadic Case, 7 EUR. J. INTL L. 265 (1996). For subsequent proceedings in Tadic, see 36
I.L.M. 908 (1997).
46. Prosecutor v. Tadic (Jurisdiction), supra note 45, at 516, para. 119.
47. Legality of the Threat or Use of Nuclear Weapons, supra note 3, at 266, para. 2(A), of
the dispositif. The Court was unanimous on this point.
48. Id,, para. 2(B) (by eleven votes to three).
49. Id. at 247, para. 52.
50. Although the principle of necessity has frequently been seen as justifying violence, in
reality it is a restraining principle, requiring belligerents not to injure, kill or damage unless that is
necessary for the achievement of legitimate military goals. See Carnahan, supra note 12.
51. The first two are outlawed by the St. Petersburg Declaration, supra note 15, and the last
by the 1899 Declaration No. 3, supra note 18.
52. The origins of this ban also lie in the principle that civilians should be protected from
acts of violence and that indiscriminate weapons are prohibited. However, the influence of the
unnecessary suffering principle is evident in the travaux preparatoires of both 1899 Declaration
No. 2, supra note 17, and the 1925 Geneva Gas Protocol, supra note 6.
53. Hague Regulations, supra note 16, art. 23(a).
54- Protocol I to the Conventional Weapons Convention, supra note 30.
55. That would be the case where, for example, no more humane alternative was available.
56. 32 I.L.R. 626 at 634 (1963). See also Dissenting Opinion of Judge Higgins, Legality of
the Threat or Use of Nuclear Weapons, supra note 3, at 585-7, and Kalshoven, supra note 1, at
234-6.
57. International Committee of the Red Cross, Conference of Government Experts on the
Use of Certain Conventional Weapons (Lucerne, Sept. 9 - Oct. 18, 1974) 9, para. 24 (1975)
[hereinafter Lucerne Conference].
58. St. Petersburg Declaration, supra note 15, at preamble.
59. For a somewhat extreme example of the "morale" argument, see the article by Major
G.V. Fosbery, Explosive Bullets and their Application to Military Purposes, 12 J. ROYAL UNITED
SERVICES INST. 15-27 (1869), discussed in Kalshoven, supra note 1, at 208-13.
60. This was the view of some of the experts at the Lucerne Conference, supra note 57, at 9,
para. 25. Although this approach was challenged by other experts (see Kalshoven, supra note 1,
at 235) it clearly reflects State practice and, in the view of the present writer, is a correct
statement of the law.
61. For example, the use of armor- piercing weapons against tanks and warships has always
been accepted as lawful, notwithstanding that they cause more grievous injuries to personnel
than do simple anti-personnel weapons. Indeed, the use of inflammable bullets, banned by the
1868 Declaration at a time when they were employed as anti-personnel weapons, came to be
accepted as lawful some fifty years later when they were used against aircraft, notwithstanding
the effect which they can have upon air crew (although their use in a simple anti- personnel role
remains unlawful) .
62. Lucerne Conference, supra note 57, at 8, para. 23.
63. International Committee of the Red Cross, The Sirus Project: Towards a
Determination of Which Weapons Cause "Superfluous Injury" or "Unnecessary
SUFFERING" (Robin Coupland ed., 1997).
64. Id. at 27.
225
The Law of Weaponry
65. Hans Blix, Methods and Means of Combat, in UNESCO, INTERNATIONAL DIMENSIONS
of Humanitarian Law 135, 139 (1988).
66. For that reason, the present writer respectfully disagrees with Professor Franchise
Hampson when she argues that Coalition forces in the 1991 Gulf fighting should have used
infantry to clear Iraqi trenches rather than bulldozing those trenches and thus condemning large
numbers of Iraqi soldiers to a death widely regarded as particularly horrific. In this writer's view,
the avoidance of the Coalition casualties which trench fighting would have caused was a military
advantage sufficient to ensure that the suffering inflicted upon the Iraqi soldiers manning the
trenches was not "unnecessary." See Frangoise Hampson, Means and Methods of Warfare in the
Conflict in the Gulf, in THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 89,
104-7 (Peter Rowe ed., 1993).
67. Frits Kalshoven, The Soldier and his Golf Clubs, in STUDIES AND ESSAYS ON
International Humanitarian Law and Red Cross Principles 369-86 (Christophe
Swinarskied., 1986).
68. Unpublished paper submitted by Colonel (later Major- General) Sir David
Hughes-Morgan, discussed in the Report of the Lucerne Conference, supra note 57, at 7-11.
69. See Part I, supra.
70. Additional Protocol I, supra note 26, arts. 48, 51(2) & 52(1). For these purposes, a
combatant is a member of the armed forces (with the exception of medical personnel and
chaplains) or someone who takes a direct part in hostilities [Art. 51(3)]. Art. 52(2) provides
that:
In so far as objects are concerned, military objectives are limited to those objects which by
their nature, location, purpose or use make an effective contribution to military action,
and whose total or partial destruction, capture or neutralisation, in the circumstances
ruling at the time, offers a definite military advantage.
71. Id., art. 51 (5) (b). This principle is also regarded as part of customary international law.
72. Id., art. 57(2) (a) (ii).
73. On this subject, see ANTHONY P.V. ROGERS, LAW ON THE BATTLEFIELD 7-46 (1996) ,
William Fenrick, Attacking the Enemy Civilian as a Punishable Offence, 7 DUKE J. OF COMP. &
INT'L L. 539 (1997), and Christopher Greenwood, Current Issues in the Law of Armed Conflict:
Weapons, Targets and International Criminal Liability, 1 SINGAPORE J. INT'L & COMP. L. 441,
459-62 (1997).
74- The annotated edition of NWP 1-14M gives as an example of an inherently
indiscriminate weapon the "bat bomb" developed but never used by the U.S. Navy during the
Second World War. This weapon would have consisted of a bat with a small incendiary bomb
attached to it. The bats would have been released over Japan, U.S. DEPT OF THE NAVY,
ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL
OPERATIONS (NWP M4M/MCWP 5-2.1/COMDTPUB P5800.1), para. 9.1.2, n. 12 (1997)
[hereinafter ANNOTATED HANDBOOK]. See also JACK COUFFER, BAT BOMB (1992).
75. But see the comments of the Trial Chamber of the International Criminal Tribunal for
the Former Yugoslavia, Prosecutor v. Martic (Rule 61) 108 I.L.R. 39, 47-52.
76. Christopher Greenwood, Customary International Law and the First Geneva Protocol of
1977 in the Gulf Conflict, in Rowe, supra note 66, at 63.
77. Additional Protocol I prohibits such attacks even by way of reprisal, but on this point
the Protocol is not declaratory of customary law; Greenwood, supra note 28, at 110-111, and
Twilight of the Law of Belligerent Reprisals, 20 NETH. Y.B. INT'L L. 35 (1989). The United
Kingdom entered a reservation to the reprisals provisions when ratifying the Protocol in January
1998. Letter of 28 January 1998 to the President of the Swiss Confederation, not yet published.
226
Christopher Greenwood
78. International Committee of the Red Cross, Commentary on the
ADDITIONAL PROTOCOLS, para. 1980 (Yves Sandoz et al. eds., 1987).
79. See the essays in THE LAW OF NAVAL WARFARE: TARGETING ENEMY MERCHANT
SHIPPING (Richard Grunawalt ed., 1993).
80. San Remo Manual on International Law Applicable to Armed Conflicts
AT SEA, 1 14 et seq. & 167-8 (Louise Doswald-Beck ed., 1995) .
81. Although it has sometimes been suggested that poison and poisoned weapons are
perfidious, the prohibition of those weapons, which has long been the subject of a specific rule,
probably owes more to perceptions that they cause unnecessary suffering and are difficult to use
in a discriminating way.
82. The prohibition of the unauthorized use of the United Nations emblem and the
provision in Article 37(1) (d) were intended to apply only where the United Nations was
involved in a conflict in a peacekeeping or other impartial role and not where the United
Nations itself had committed forces to combat. Sandoz, supra note 78, para. 1560.
83. See text accompanying note 37, supra.
84. Robert W.Tucker, The Law of War and Neutrality at Sea 138-42 (1955).
85. Additional Protocol I, supra note 26, art. 39(3).
86. SAN REMO MANUAL, supra note 80, at 186.
87. ANNOTATED HANDBOOK, supra note 74, ch. 12, esp. para. 12.7 & n. 23.
88. Contrast the explanation to paragraph 111 of the SAN REMO MANUAL, supra note 80,
at 186, with TUCKER, supra note 84, at 140-1.
89. San Remo Manual, supra note 80, at 185.
90. ENMOD, supra note 30.
91. See, e.g, the paper by the International Committee of the Red Cross in Report of the
Secretary-General on the Protection of the Environment in Times of Armed Conflict, United
Nations Doc. A/48/269, at 25. See also ENVIRONMENTAL PROTECTION AND THE LAW OF WAR
(Glen Plant ed., 1992).
92. See also art. 55. The terms "widespread, long-term and severe" in the Protocol do not
carry the same meaning as "widespread, long-lasting or severe" in the ENMOD Treaty. Not only
are the three requirements cumulative in Additional Protocol I, whereas they are alternatives in
ENMOD, the travaux preparatoires of the two agreements demonstrate that "long-lasting" in the
ENMOD Treaty was intended to refer to effects which lasted for approximately a season (see the
Understanding adopted in relation to this term by the Conference of the Committee on
Disarmament, quoted in DOCUMENTS ON THE LAWS OF WAR 377-8 (Adam Roberts and
Richard Guelff eds., 1989)), whereas "long-term" in Additional Protocol I was intended to
convey a sense of something to be measured "in decades rather than months." Sandoz, supra note
78, at 417.
93. See the statement to this effect by the Federal Republic of Germany, VI OFFICIAL
RECORDS OF THE DIPLOMATIC CONFERENCE 115 (prepared by the Foreign Ministry of
Switzerland). Articles 35 (3) and 55 were not included in the list of provisions deemed to be part
of customary law which appears in the International Committee of the Red Cross Commentary
on the Additional Protocols (Sandoz, supra note 78, paras. 1857-9) and the International Court
did not treat them as declaratory of custom in the Nuclear Weapons case, supra note 3, at 242,
para. 31. See also Kalshoven, supra note 1, at 283.
94. Annotated Handbook, supra note 74, para. 8.1.3.
95. Legality of the Threat or Use of Nuclear Weapons, supra note note 3, at 242, para. 30.
96. G.A. Res. 47/37 (1992) on the "Protection of the Environment in Times of Armed
Conflict." See also G.A. Res. 49/50.
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The Law of Weaponry
97. See also SAN REMO MANUAL, supra note 80, at 1 19; ROGERS, supra note 73, at 127-9.
98. Hague Regulations, supra note 16, art. 22; Additional Protocol I, supra note 26, art.
35(1).
99. See, e.g., the view expressed by some participants at the Lucerne Conference, supra
note 57, at 11-12. See also Helmut Strebel, Martens Clause, in 3 ENCYCLOPAEDIA OF PUBLIC
INTERNATIONAL Law 252-3 (R. Bernhardt ed., 1982).
100. Kalshoven, supra note 1, at 238.
101. On this point, see BLINDING WEAPONS (Louise Doswald-Beck ed., 1993).
102. See, e.g., B. Anderberg, O. Bring, & M. Wolbarsht, Blinding Laser Weapons and
International Humanitarian Law, 29 J. PEACE RESEARCH 287 (1992).
103. See, e.g., the Memorandum of Law by the U.S. Judge Advocate -General of the Army,
reprinted in BLINDING WEAPONS, supra note 101, at 367.
104. See Christopher Greenwood, Analysis of the Law Applicable to the Use of Battlefield Laser
Weapons, in id. at 71, and the ensuing discussion.
105. 35 I.L.M. 1218 (1996). The text of the new protocol is also reproduced, together with a
useful commentary, in Louise Doswald-Beck, The New Protocol on Blinding Laser Weapons, 36
INT'L REV. RED CROSS 272 (1996). At 30 April 1998 there were 24 parties to the Protocol.
106. See art. 3. Doswald-Beck, supra note 105, at 298, argues, however, that the use of laser
weapons against optics systems is incompatible with the underlying intention of the Protocol.
107. Roberts & Guelff, supra note 92, at 479. For a commentary on the original Protocol II,
see A.P.V. Rogers, Mines, Booby -traps and Other Devices, 30 INTL REV. RED CROSS 521 (1990).
108. Original Mines Protocol, supra note 8, art. 2(1), defines a mine as "any munition placed
under, on or near the ground or other surface area and designed to be detonated or exploded by
the presence, proximity or contact of a person or vehicle."
109. Rogers, supra note 107, at 528.
110. See, e.g., the ICRC booklet, Mines: A Perverse Use of Technology; P. CORNISH,
Anti-Personnel Mines: Controlling the Plague of "Butterflies" (R.I.I.A., 1994).
111. Amended Mines Protocol, supra note 8. At 30 April 1998 there were 19 parties to the
Amended Protocol.
112. Id., arts. 1(2) and (3).
113. Doswald-Beck, supra note 105, at 287. Some States have made declarations to this
effect when ratifying the new Protocol IV; see, e.g., the declarations by Germany, Ireland and
Sweden.
114. The United Nations Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on their Destruction, 1997, art. 1., 36
I.L.M. 1507 (1997).
115. Id., art. 2.
116. Id., art. 9.
117. Chemical Weapons Convention, supra note 6. At 30 April 1998 there were 1 08 parties.
118. Roberts & Guelff, supra note 92, at 137. See also the prohibition on poison and
poisoned weapons codified in Article 23(a) of the Hague Regulations in Land Warfare, 1907,
and the 1899 Hague Declaration No. 2 Regarding Asphyxiating Gases, notes 17 and 20, supra.
119. See, e.g., the United Kingdom Reservation, reprinted in Roberts & Guelff, supra note 92,
at 144. These reservations originally applied to the use of bacteriological weapons as well. For
States Party to the 1972 Toxins Convention, however, reservation to the prohibition of such
weapons was prohibited, so that the reservation of the right to use bacteriological weapons
ceased to have any real substance. Even so, it was not until 1991 that the United Kingdom
228
Christopher Greenwood
withdrew its reservation of the right to use bacteriological weapons, 63 BRIT. Y.B. INT'L L. 700
(1992).
120. See the reports of a commission of experts established by the UN Secretary-General to
inquire into allegations of the use of chemical weapons by Iraq, U.N. Docs. S17130 (April 25,
1985),S/17932 (March 21,1986), and S/l 8863 (May 14, 1987). The use of chemical weapons by
Iraq was condemned in a Statement by the President of the Security Council on 21 March 1986.
U.N. Doc. S/PV.2667, reprinted in RESOLUTIONS AND STATEMENTS OF THE UNITED NATIONS
SECURITY COUNCIL, 1946-92, at 466 (K. Wellens ed., 1993)), but the Council's own
resolutions were couched in cautious language and did not formally censure Iraq, let alone
impose sanctions upon it. See S.C. Res. 598 (1987) & 620 (1988). Not until after the Kuwait
conflict did the Security Council take action to seek out and destroy Iraq's stockpiles of chemical
weapons. S.C. Res. 687 (1991).
121. See the speech by Iraq's representative to the United Nations in the Security Council
on 16 February 1991. U.N. Doc. S/PV.2977.
122. For a detailed commentary, see W. KRUTZSCH & R. TRAPP, A COMMENTARY ON THE
Chemical Weapons Convention (1994).
123. See Roberts & Guelff, supra note 92, at 137-8.
124. Chemical Weapons Convention, supra note 6, art. I, para. 5. See also art. II, paras. 7 &9;
KRUTZSCH & TRAPP, supra note 122, at 18 & 42.
125. KRUTZSCH & TRAPP, supra note 122, at 13.
126. See, e.g., the statement by the Government of the United Kingdom condemning Iraq's
use of gas against Iraqi civilians at Halabja in 1988, 59 BRIT. Y.B. INT'L L. 579 (1988), quoted
with approval by the Appeals Chamber of the International Criminal Tribunal for Former
Yugoslavia in Prosecutor v. Tadic (Jurisdiction) , supra note 45, at 517-18.
127. Dissenting Opinion of Judge Schwebel, Legality of the Threat or Use of Nuclear
Weapons, supra note 3, at 323-29.
128. See Chemical Weapons Convention, supra note 6, art. I, para. 1.
129. See id., art. I, paras. 3 & 4.
130. The author appeared as one of the counsel for the United Kingdom in the proceedings
before the International Court of Justice on the Threat or Use of Nuclear Weapons, supra note 3.
The views expressed in the present paper are the personal views of the author and should not be
taken as representing the position of the Government of the United Kingdom.
131. See esp. G.A. Res. 1653 (1961), 2936 (1972), 33/71 B (1978), 35/152 D (1980), 36/92 I
(1981), 45/59 B (1990), 46/37 D (1991), 47/53 C (1992), & 48/76 B (1993).
132. See, e.g., N. SINGH & E. McWHINNEY, NUCLEAR WEAPONS AND CONTEMPORARY
International Law (2d ed. 1989), G. Schwarzenberger, The Legality of Nuclear
WEAPONS (1958), and the essays by Falk, Meyrowitz, and Weston in NUCLEAR WEAPONS AND
LAW (Miller and Feinrider eds., 1984).
133. See esp. Written Observations of India, Malaysia, Nauru and the Solomon Islands.
134- See Written Observations of France, the Russian Federation, the United Kingdom and
the United States of America. In the case of France, at least, this reflected a change of position.
See also Kalshoven, supra note 1, at 266 et seq.\ W. Hearn, The International Legal Regime
Regulating Nuclear Deterrence and Warfare, 61 BRIT. Y.B. INT'L L. 199 (1990); and D.
Rauschning, Nuclear Weapons, in 4 ENCYCLOPAEDIA OF PUBLIC INTERNATIONAL LAW 44 (R.
Bernhardt ed., 1982).
135. See Kalshoven, supra note 1, at 281-2.
136. For comment, see Richard Falk, Nuclear Weapons, International Law and the World
Court, 91 AM. J. INT'L L. 64-75 (1997); Michael Matheson, The Opinions of the International
229
The Law of Weaponry
Court of Justice on the Threat or Use of Nuclear Weapons, id. at 417-35; and the symposium in 37
Inpl Rev. Red Cross 4-1 1 7 (1997) .
137. Legality of the Threat or Use of Nuclear Weapons, supra note 3, paras. 71 and 105, part
2(B).
138. Id., paras. 54-7.
139. Id., para. 95.
140. Id., para. 105, part 2(E).
141. See the criticism in the Dissenting Opinion of Judge Higgins, supra note 56, at 584-5.
142. Legality of the Threat or Use of Nuclear Weapons, supra note 3, paras. 94-5.
143. See, in particular, the Separate Opinion of Judge Fleischhauer, 1996 I.C.J. 305.
144- For further discussion of this point, see Christopher Greenwood, Jus ad Bellum andjus in
Bello in the Advisory Opinion on Nuclear Weapons, in THE ADVISORY OPINION OF THE
International Court of Justice on Nuclear Weapons (P. Sands & L. Fjoisson de
Chazournes eds., 1998).
145. Compare Condorelli, 37 INT'L REV. RED CROSS 9 (1997) with David, id. at 21.
146. Article 6 of the 1966 International Covenant on Civil and Political Rights, provides
that:
Every human being has the inherent right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life.
Comparable provisions can be found in Article 2 of the European Convention on Human Rights,
Article 4 of the American Convention on Human Rights, and Article 4 of the African Charter
on Human and People's Rights.
147. General Comment 14(23), U.N. Doc. A/40/40, at 162, para. 4- For comment, see
Dominic McGoldrick, The Human Rights Committee 336 (1994).
148. See Written Observations of the Netherlands to the International Court of Justice,
para. 27.
149. Legality of the Threat or Use of Nuclear Weapons, supra note 3, para. 25.
150. See, e.g., the decisions of the European Court of Human Rights in Loizidou v. Turkey,
103 I.L.R. 622 (1995) and 108 I.L.R. 443 (1996), and the European Commission of Human
Rights in Cyprus v. Turkey, 23 E.H.R.R. 244 (1997), where the European Convention on
Human Rights was invoked in a case of belligerent occupation.
151. See, e.g., the reliance by Mexico and the Solomon Islands in their Written
Observations to the International Court of Justice on the Rio Declaration and other
environmental texts.
152. Legality of the Threat or Use of Nuclear Weapons, supra note 3, para. 30.
153. Id., paras. 30 and 33.
154. See Part IV (1) (d), supra.
155. Legality of the Threat or Use of Nuclear Weapons, supra note 3, para. 105, part 2(C).
156. 1986 I.C.J. 3.
157. Legality of the Threat or Use of Nuclear Weapons, supra note 3, para. 41.
158. See, e.g., Christopher Greenwood, The Relationship Between Jus adBellum andjus in Bello,
9 REV. INPL STUDIES 221 (1982), and Self-defence and the Conduct of International Armed
Conflict, in International Law at a Time of Perplexity 273 (YoramDinsteined., 1989).
159. Legality of the Threat or Use of Nuclear Weapons, supra note 3, paras. 42-43.
160. 1996 I.C.J. 583. See also the views of Judge Ago as Rapporteur on State Responsibility
for the International Law Commission, Eighth Report, II(I) Y.B.I.L.C. 69 (1980).
It would be mistaken ... to think that there must be proportionality between the conduct
constituting the armed attack and the opposing conduct. The action needed to halt and
230
Christopher Greenwood
repulse the attack may well have to assume dimensions disproportionate to those of the
attack suffered. What matters in this respect is the result to be achieved by the 'defensive*
action, and not the forms, substance and strength of the action itself.
161. See Chemical Weapons Convention, supra note 6, art. VII. For an example of national
implementation, see the United Kingdom's Chemical Weapons Act 1996.
162. Legality of the Threat or Use of Nuclear Weapons, supra note 3, para. 105, part 2(F).
163. See FRANCOIS HEISBOURG, THE FUTURE OE WARFARE (1998).
164. Additional Protocol I, supra note 26, at art. 49(1).
165. This duty is expressly stated in Additional Protocol I, Article 36, but is regarded as part
of customary international law. The United States of America, for example, which is not a party
to Additional Protocol I, has long had a scrutiny program of this kind.
231
232
VIII
Nongovernmental Organizations
in Situations of Conflict:
The Negotiation of Change
Franchise Hampson
JUST AS ARMIES PLAN FOR THE NEXT WAR by learning the lessons of
the last, so nongovernmental organizations (NGOs) in looking towards
the future base themselves on the problems and dilemmas of the recent past. If
the number of in- house training sessions and conferences are anything to go by,
NGOs think they have a variety of problems. 1 The last decade of the twentieth
century is confronting them with unexpected challenges in situations of
conflict. It is not that the NGOs are unfamiliar with conflict; something about
recent conflicts has changed, with particular impact on NGOs.
Some of that change may simply be the prevalence, to a greater degree than
in the past, of elements previously present. One such example is the attempt of
the fighting parties to control the delivery of humanitarian assistance. This
may be accompanied by novel, or apparently novel, forms of fighting. If an
object of the fighting requires the direct and indirect targeting of the civilian
population, this is likely to have an impact on NGO activities. If, for example,
an object of the fighting is to bring about the removal of a portion of the
population from an area (e.g., "ethnic cleansing"), the conduct of hostilities is
NGOs in Situations of Conflict
likely to take a different form from that of conflicts that are in effect a "simple"
power struggle. In both cases, there may be displacement of the civilian
population, but the manner in which that happens, the length of the resultant
displacement, and the prospects for ultimate return, will be very different.
Another key change in the past decade with a significant impact on NGO
operations is the likelihood that UN or UN-authorized military personnel,
acting under a "peace-keeping" or "peace-enforcement" mandate, will be
found in the theater of conflict. 2
These developments have an impact not only on NGOs but also on
inter-governmental organizations (IGOs), such as the United Nations High
Commissioner for Refugees (UNHCR). The fact that both NGOs and IGOs are
adjusting to changes, possibly in different ways, simply adds to the complexity
o( the situation. NGOs are more used to working alongside IGOs than with the
military, but the IGOs are subject to different pressures in adjusting to change
than are the NGOs. It can be as difficult to adapt existing relationships as to
forge new ones. That process of adaptation is made more complicated when an
IGO is given the role of co-ordinating NGO activities. 3
Once NGOs recognize the need at least to reconsider existing practices, they
are likely to encounter further difficulties. There may be a natural tendency to
assume that existing practices based on experience are right for the particular
NGO; challenges to assumptions, which appear to be truths to those making
them, are painful. Each NGO has its own "mandate" or objective. Other
organizations with different objectives may need to change, but they are the
experts on their own areas of activity; in that field, the particular NGO has
nothing to learn from others. Where, on the other hand, it is recognized that
there may be something to learn from the experience and solutions of other
NGOs, the question becomes, how relevant is the experience of others? To
what extent can one NGO learn from the experience of others? At least by
meeting together and sharing what each perceives to be its difficulties, there is
the opportunity for individual NGOs to reflect on their own assumptions and
practices.
This only serves to emphasize one of the clearest lessons of the past decade:
NGOs cannot be lumped together. Their aims are different and their working
methods are dissimilar. This means that in the same situation different NGOs
will react differently. Both UN and UN-authorized forces and the parties to a
conflict must avoid the assumption that all NGOs will react in the same way.
Seen from outside, NGOs have more in common with one another than they do
with IGOs or other groups present in theater. Seen from within an NGO,
however, the view may be otherwise. The goals, working methods, and
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Franqoise Hampson
previous experience of a particular NGO may make it easy for it to work with
UNHCR, whereas another NGO may have problems with some of UNHCR's
working methods. 4
This paper will first examine the diversity of NGOs that may be found in
conflict situations. There is no attempt to be comprehensive, an attempt that
would be doomed to failure. The object rather is to illustrate the diversity. The
variety of conflict situations in which NGOs may find themselves will then be
considered briefly. There is an interplay between the type of NGO and the
varieties of conflict situations which is likely to affect the NGOs' priorities and
their perceptions of the problems. There will then be an examination of certain
commonly recurring themes. Again, there is no claim to be comprehensive in
either the identification of the themes or their treatment. The themes in
question are humanitarian assistance, medical activities, neutrality, the
reporting of violations of applicable legal norms, and the accountability of
NGOs, including the role of the media. The paper will conclude with a highly
speculative and personal view of likely trends in the short to medium term.
The Diversity of NGOs
Any attempt to classify NGOs must be accompanied by two notes of
caution. 5 First, classification is a tool of convenience, not a straitjacket.
Second, an NGO may fall into more than one of the categories. 6 It must also be
remembered, when considering NGOs in situations of conflict, that many of the
NGOs present may not be conflict-specific because they were already working
in a State when the fighting broke out. 7 That can include both local and
out-of-country NGOs. This situation is likely to be particularly true of the first
category.
Development NGOs. Development NGOs often have long-term projects in a
country. Their activities usually fall into the field of economic and social rights.
They are involved in the development of the local infrastructure for the
provision of essential needs. They may be group specific (e.g., women and
children 8 ) or resource or issue specific (e.g., water or appropriate
technologies 9 ). They may work throughout one or more States or just within a
certain distinct region(s). As the view of such assistance has changed in the
West from "charity" to development assistance, much greater attention has
been paid to capacity building within the recipient community and to
encouraging the participation of those whom the project is designed to assist. 10
This involves listening as well as doing. Sustainability is more important than
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speed. Many NGOs in this group will be used to working with or through
governmental infrastructures, which may have the effect of helping to
strengthen them. 11 In building up local capacity, the NGOs are seeking to avoid
creating dependency.
Since their work is not conflict related, there are no "sides," simply people in
need oi assistance. The question of neutrality and impartial assistance to all
sides does not arise. This enables development NGOs to confine their activities
to one area within the State, even if the same need exists elsewhere. 12 For this
group doing something somewhere is better than doing nothing at all.
Relief NGOs. Relief NGOs are specialists in disaster assistance, whether the
disaster is man-made or natural. They have no long-term commitment to a
particular people or place, but rather seek to meet acute needs during periods of
crisis. The issue of capacity building, or even infrastructure building, is not
generally applicable. Involving the recipient community is much less important
for relief NGOs, but they have been affected by the debates within development
NGOs and may make token gestures in this direction. There is a danger that
they may ignore the impact of relief on the local economy. 13 This may have a
negative impact on long-term capacity-building, including the capacity for
crisis management. The impact of relief can also be positive, as where the
volume of relief available destroys a black-market. 14 The relief NGOs need to be
experts in logistics and able to function autonomously. They cannot rely on
finding an infrastructure in place, whether that be roads or governmental
institutions.
Some relief NGOs have built up a wealth of experience in a variety of
theaters of conflict. They are aware of the need to negotiate with parties in
control on the ground and realize the dangers in such negotiations. They are
used to debates about their "neutrality" and of the need to be, and to appear to
be, impartial.
Other NGOs operate in a different way. Some are not NGOs in the
traditional sense. Groups of individuals, troubled by a particular conflict, might
put together a truck load oi the relief they assume to be necessary. They may
even manage to send a small convoy of trucks to the conflict zone, with a view
to distributing the relief. Such individuals have enthusiasm and commitment
but a total lack of experience. 15 They have no knowledge of what is needed
where. They have no experience of negotiating relief through zones of conflict.
They may fail to recognize signals of personal danger. A problem arises when,
unwittingly, their activities prejudice better organized and more significant (in
terms of volume) relief efforts. The individuals involved should be encouraged
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to put their efforts into fund-raising for experienced relief NGOs. The difficulty
is that established NGOs can hardly make such an argument; it appears to be
born of rivalry or a fear of competition. Others must assume the responsibility
for making the argument.
If the group just discussed may be seen as exasperatingly naive amateurs, a
much more serious problem is caused by relief "cowboys." Certain NGOs want
to be seen as getting through to the places others cannot reach, whatever the
price. The price paid, in terms, for example, of diverted relief supplies, will not
be seen on television screens, but their presence will be. They are very
dependent on donor support and therefore need to have a high profile presence
in the areas of acute need, where the television cameras are most likely to be.
Not only do such groups cause problems in theater, where the conflicting
parties may assume that they can exact the same price from all relief agencies or
that all such NGOs will behave in the same way, but more traditional relief
NGOs may find themselves in competition with them for donor support. If the
latter are seen to be doing something, they may attract greater financial support
from individuals than more responsible, lower profile NGOs. This, in turn, may
affect the conduct of the well-established NGOs. In order to maintain donor
support, they may be tempted to ignore certain well-established principles of
their modus operandi. 16 There is little that can be done to regulate the
"cowboys." The well-established relief NGOs can, however, reinforce their own
adherence to certain principles. They can agree with one another to make joint
appeals in emergency situations and to distribute the resultant "kitty"
according to an agreed formula. 17 This avoids competitive fund-raising. Under
the leadership of the International Committee of the Red Cross (ICRC), a code
of principles has been agreed upon for the delivery of humanitarian
assistance. 18 It is to be hoped that governments, which are often, directly or
indirectly, very significant donors to relief operations, will make their funding
conditional upon adherence to these principles. 19
Medical NGOs. Development and relief NGOs may, of course, work in the
medical field. In addition, however, there are dedicated medical NGOs which
offer medical treatment in situations of conflict. What might be termed
"medical/development assistance" includes group specific activity, such as that
related to the promotion of women's health, 20 and action related to a specific
medical field. 21 The work may be part of a larger development program or may
be the only activity of the organization. Certain medical concerns, notably
female reproductive health, need to be handled with even greater cultural
sensitivity than general development issues. Where the medical activity
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NGOs in Situations of Conflict
involves dealings with patients and is handled by medical personnel, issues of
medical ethics may arise, particularly with regard to confidentiality. 22
The provision of medical services in situations of conflict is particularly the
province of the 1CRC and Medecins sans Frontieres (MSF). This is what
distinguishes such organizations from relief agencies that include medical
goods in their consignments. The ICRC and MSF send medical teams into the
field, including specialists in war surgery. 23 The two organizations are keenly
aware of what distinguishes them from one another. 24 From the outside, it is
clear that they have very different ground rules with regard to where they will
go and under what conditions. When it comes to the treatment of patients,
both sets o{ medical personnel are bound by and apply the rules of medical
ethics. 25 They are marked out from other relief organizations not only on
account of their adherence to a particular code of ethics; situations in which
they have to work often require them to apply the principle of "triage" in
assigning priority of treatment. In this, they have much in common with the
medical services of armed forces. 26 They are not, however, subject to the
constraints o( a military hierarchy or military discipline.
Movement NGOs. There are many NGOs working with refugees and asylum
seekers, but this tends to be in the country of refuge, rather than in the place
from which they are fleeing. Development and relief NGOs may work with
refugees and internally displaced persons (IDPs), but they do not generally
focus on the cause of displacement; rather, these NGOs deal with current
needs. Human rights NGOs may address the causes of refugee displacement,
but in the context of human rights violations rather than the resultant
displacement. UNHCR is, of course, an agency concerned with the causes and
effects of displacement. If there are NGOs that focus specifically on
displacement (such as I.O.M.), they are not as well known as the most
prominent development, relief, medical or human rights NGOs.
Human Rights NGOs. The majority, and certainly the best known, of the
human rights NGOs work principally in the field of civil and political rights.
There are, nevertheless, certain NGOs that work outside the area of conflict on
what might be seen as survival rights or economic and social rights, such as
those to food and shelter. 27 In addition, certain development NGOs articulate
at least some o( their activities in human rights language. 28 What the human
rights NGOs have in common is that they do not deliver assistance or services
in the field in the same way as the organizations so far discussed. This does not
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mean that they do not have a field presence; their function is, however, very
different.
Insofar as human rights violations are a significant cause, or symptom, of
impending conflict, timely and effective response to the concerns articulated in
the reports of NGOs would represent a form of conflict prevention. Yet it
happens all too rarely.
The principal tool of human rights NGOs is the report. Such reports aim to
attract publicity in order to secure the "mobilization of shame." Human rights
NGOs vary significantly in the use they make of their reports for lobbying. Many
are not membership organizations, although they may have subscribers. Amnesty
International is unusual in being not only a membership organization but one
which relies heavily on the campaigning activities of members. This includes
putting pressure not only on their own governments with regard to the situation
in another country but also on the offending government by letter writing to a
wide range of public officials. Many of the human rights NGOs make effective use
of the UN human rights machinery by, for example, submitting information to
UN thematic and Special Rapporteurs and to the Human Rights Committee
established under the International Covenant on Civil and Political Rights.
The human rights NGOs once showed a certain initial reluctance to get
involved in legal questions arising out of the conduct of hostilities. They often
found themselves reporting on violations of human rights that occurred in
situations of non-international conflict, particularly in central America, but
tended to concentrate on the impact on civilians. Since human rights law
directly binds only State authorities, they tended to focus on human rights
violations carried out by police and armed forces. 30 This exposed them to the
charge of one-sidedness, since they did not address "violations" by
non-governmental entities.
The pattern with regard to human rights reporting, however, has changed
markedly over the past decade. Human Rights Watch led the way in analyzing
situations and particular actions from the standpoint of humanitarian law as
well as human rights law. This enabled them to examine the conduct of
military operations. 31 Amnesty International has, more cautiously, begun to
follow suit. 32 This is partly the product of a change in the pattern of human
rights violations. While individual cases of arbitrary detention, torture, and
unfair trials continue to exist, situations of gross and systematic violations of
human rights have acquired greater prominence through conflicts such as
those in Somalia, the former Yugoslavia, and Rwanda.
The human rights NGOs also now seek to address "violations" perpetrated
by non-governmental entities. The language used and the campaigning tools
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NGOs in Situations of Conflict
are different, but these base themselves on the same standards as those
applicable to States.
Human rights NGOs need reliable sources of detailed information. One of
the obvious potential sources in situations of conflict is the personnel attached
to development, relief, and medical NGOs. This has given rise to real dilemmas
for the latter, who fear that their neutrality and impartiality may be called into
question if they provide information on violations of human rights or
humanitarian law, however objective and impartial the reporting. This may
prejudice their ability to continue providing relief to those in need. (This
problem will be considered further below.)
It has been seen that a wide variety of NGO actors may be found in situations
of conflict, with very different functions and views as to the principles
applicable to their activities. A further, extremely significant, variable is the
type of situation in which they find themselves operating.
The Diversity of Situations
Before the Fighting, Many, but not all, recent conflicts have arisen in States
receiving some form of development assistance. In some cases, the assistance
has taken a traditional form, that is to say, the development of infrastructures
to meet the basic needs of the population. In more recent years, direct or
indirect government-funded assistance has sometimes come with strings
attached. (Conditionality will be examined further below.) In the case of
Eastern Europe and the former Soviet Union, assistance has taken the form of
help in adjustment, rather than development. What has been sought, notably
by the Organization for Security and Cooperation in Europe (OSCE), has been
the promotion of the institutions and mechanisms of civil society.
In many cases, conflict is the direct or indirect result of weak State
structures. 33 Where chronic instability has prevented effective nation-building,
governmental structures are weak, and the outbreak or intensification of
fighting presents a challenge that overwhelms them. In other cases, the
precipitating element may be the aftershocks brought about by the implosion of
the former Soviet Union. Where the conflict is a reaction to an autocratic
regime, it may be the indirect result of weak State structures, however
paradoxical that may appear. Nervous governments faced with challenges to
their authority do not have the confidence to allow space for dissent or to
negotiate the challenge; instead, they respond with oppression, thereby
contributing to that which they most fear.
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Franqoise Hampson
The development NGOs are not well placed to address these concerns,
beyond attempting to meet survival needs and, through cooperation with
government agencies, seeking to instill good practice. They are, however, well
placed to observe and to send warnings to the international community.
Development agencies sent the clearest possible signals about the deteriorating
situation in Somalia, but to no avail. 34 From outside the countries involved,
human rights NGOs may send similar warnings. That happened most notably in
the case of Rwanda.
During the Fighting, The fighting may make it impossible to continue with
development assistance, either on account of the hostilities or of the resultant
dislocation, such as the displacement of the population. There will suddenly be
a change in the political and legal context, and a plethora of new players in the
field. It is all too easy, in an academic or bureaucratic ivory tower, to forget the
chaos engendered by an ever-changing political and military situation, about
which there is usually inadequate and/or outdated information, and by the
constant need to achieve new means o{ cooperation with ever-changing
organizations. It is little wonder if NGOs simply react to events.
NGOs with the most experience in conflict situations are likely to be those
which have developed modi operandi to cope with predictable chaos. The
difficulty, however, is that while chaos is predictable, its particular form is not.
Emergency relief NGOs will not have the experience of the particular society
and culture that development NGOs will have gained.
The apparently rigid principles o{ the ICRC may give the impression that
they can cope with high levels of chaos and rapid change. 35 They simply follow
their tried and tested principles. The danger, however, is that the principles
become a straitjacket that prevent the ICRC from adapting to changing
circumstances. 36 At least as great a problem is presented by NGOs that have not
thought through in sufficient detail their principles of action and cooperation.
They may be tossed around by circumstances, consoling themselves with their
bottom line: "do no harm." 37
It would be presumptuous to propose solutions either to the ICRC or to less
experienced NGOs. They can only be urged to take the time to debrief their
personnel and attempt to identify, and then learn, the lessons to be learned.
Even as they do so, they should avoid reassuring but illusory certainties; just as
every NGO is different, so is every conflict.
The same problems will also beset any UN or UN -authorized forces in the
field. They need to avoid the dangerous tendency of lumping all NGOs
together. This might best be avoided if they got to know them individually. It is
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NGOs in Situations of Conflict
too late when they meet one another in theater. Getting to know and
understand the NGOs (and vice versa) needs to happen before deployment,
ideally through joint training exercises. 38 This will not remove all causes of
conflict, but it may remove some and enable them to predict others. The same
is true of the relationships between NGOs. 39 One of the lessons of recent
peacekeeping and peace-enforcement operations is that all parties in theater
need not only to know their enemies, but also their friends.
Towards the End of the Fighting. The fighting may come to a halt owing to
war-weariness, temporary or longer-term, or as a result of some form of
cease-fire, however fragile. There will inevitably be a need for assistance in
reconstruction. Even if there are still legacies of the fighting to be dealt with,
such as the disarming of fighters and the (re) creation of an effective and
accountable police force, 40 the language of discourse will shift from
humanitarian law to human rights law, from relief to development. Since the
foundations for the post-conflict future will have been laid during the conflict,
it is as important that those laying the foundations understand what will come
next as it is that those involved in reconstruction understand the foundations
on which they are building. Human rights language is not the same as
humanitarian law language, even though both are premised on the inherent
dignity of the individual and the protection of the vulnerable. The two types of
analysis complement one another. 41 All the players, before, during and after
the conflict, need to be familiar with both.
The problems with which NGOs, and governments as major funders of their
operations, will have to grapple vary depending on the NGO and the situation.
Nevertheless, certain common themes do arise.
Humanitarian Assistance
In the constantly changing reality of the situation on the ground in Somalia,
the former Yugoslavia, Liberia, and Rwanda, any number of elements may
appear to have contributed to the result. That result may be a starving
populace, deprived of humanitarian assistance, or the massacre of refugees, or
the slaughter of innocents in UN-proclaimed "safe areas." It may be difficult to
distinguish secondary elements from the irreducible kernel of hard choices.
That effort must be made by NGOs, IGOs, and governments working together if
the dead of this decade are not to have died in vain.
All the conflicts have been marked, to a greater or lesser degree, by the
difficulty both NGOs and IGOs experienced in getting humanitarian assistance
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to those who needed it. It is not surprising that the attention of NGOs has
turned to better coordination of relief efforts and to what must appear to be
deficiencies in the legal rules applicable. There is always a need to improve
coordination, but that is hardly an answer to denial of access to populations in
need. 42 Similarly, any examination of the legal rules applicable, whether in
international or non-international conflicts, suggests that the problem does
not lie there, although the failure to respect the rules is a problem.
In an international conflict, starvation of civilians as a method of warfare is
prohibited. 43 That does not extend to situations where starvation is the
foreseeable result but not itself the tactic. Relief operations that are
humanitarian and impartial in character should be undertaken, subject to the
agreement of the Parties concerned. 44 The Parties are required to allow and
facilitate rapid and unimpeded passage of relief, even if it is destined for the
civilian population of the adverse Party. 45 The Parties have the right to
prescribe the technical arrangements, which include, but are not confined to,
the right to search relief convoys to confirm that they do not include military
equipment. 46 Relief personnel are to be protected, but their participation is
subject to the approval of the Party in whose territory they will carry out their
duties. 47 While the language of the provision on humanitarian assistance is
mandatory, the requirement of consent is susceptible to abuse.
In non-international conflicts to which Protocol II of 1977 is applicable,
relief actions of an exclusively humanitarian character should be undertaken,
but subject to the consent of the High Contracting Party concerned. 48 The
Protocol does not require the consent of the non-State forces because that
might appear to grant a certain status to the "rebels" and would be seen as
interference in the internal affairs of the State concerned. Starvation of
civilians as a method of combat is again prohibited. 49
In non-international conflicts to which only common Article 3 o{ the
Geneva Conventions of 1949 is applicable, there is no provision on the delivery
of humanitarian assistance. An impartial humanitarian body may, however,
offer its services to the Parties to the conflict, and that offer cannot be claimed
to constitute an interference in the internal affairs of the State. 50
No doubt there are gaps, and the law could probably be improved, but that is
to miss the point. If the forces in control on the ground will not grant access to
populations in need, then either the assistance convoys run the real risk of
attack or they must be equipped to protect themselves. The consent of those in
de facto control is a practical prerequisite to the unarmed delivery of assistance.
Nor is the explanation plausible that the Parties are simply ignorant of the
rules, that if only they knew them, then they would allow access to the
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populations in need. 51 The reasons for the denial of access may vary, but
improved dissemination of the rules is likely to have only a very limited effect.
The problem concerns not only access to populations in need, but also the
lack of security of those people, whether they be in Sarajevo, in refugee camps,
or in "safe areas." 52 A BBC radio news bulletin carried an interview with an
inhabitant of Sarajevo during the siege of the city. He commented that the
international community seemed not to mind that he would die one day from a
sniper's bullet, provided he was not hungry at the time. Humanitarian
assistance was a substitute for an overall policy.
The NGOs have recognized the linkage between the delivery of
humanitarian assistance and the protection of the civilian population. 53 It is far
from clear, however, that they have recognized that this may mean hard
choices. Governments may be less inclined to assist in the delivery of
humanitarian assistance if the price is high. 54 For some NGOs, to save one life is
to save a universe. They would prefer not to have 90 percent of the aid diverted
to people in less need of it. They would prefer not to have to turn a blind eye to
the massacre of civilians. They are not prepared, however, to see one person
starve if that can be prevented.
NGOs are born of idealism and commitment to those in need. It is not
surprising that they should find it difficult to accept that the price of delivery of
assistance may be too high. One must also be cautious about the greater
willingness of governments, principal donors to NGOs, to contemplate such a
possibility, unless it forms part of a policy designed to promote the greater good
of the population. Determining that the price to be paid for delivery of
humanitarian assistance is too high cannot simply be allowed to be a means
whereby governments get themselves "off the hook."
Some NGOs see this attitude on the part of governments as an extension of
"conditionality" in the development assistance field. It is submitted that while
the two do have something in common, there is a difference in this context.
There are two priorities in relation to the population in need. One is their physical
security, the other the provision of humanitarian assistance. These priorities
may, in a given situation, compete with one another.
The protection of the civilian population may also raise the question of the
role of armed forces. In certain circumstances it may be necessary to deploy
armed forces that are appropriately configured and equipped, and that have the
mandate and, above all, political will to protect the civilian population. The
attempts to date by the international community, with the exception of the
"safe haven" in Northern Iraq immediately after its designation, have been
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half-hearted and doomed to failure from the outset. 55 It may be that this is a job
which should be done properly or not at all.
NGOs cannot afford to lose their impartiality, but that still leaves them with
hard choices. 56 There may be a split between those that come to accept
restrictions on the delivery of humanitarian assistance in order better to
protect the civilian population, and those that cannot accept such restrictions.
If governments channel their funding to the former, the latter will be
dependent upon the support of individual donors. There may also be a split, not
necessarily along the same lines, between those prepared to work with UN or
UN-authorized forces and those that reject such cooperation on the grounds
that it prejudices their impartiality. By establishing clear doctrine for peace
support operations, including the tactical level, armed forces could contribute
significantly to reducing the perceived problem. 57 It probably cannot, however,
be completely eliminated. While the question of the role of armed forces and
the debate between humanitarian assistance and protection overlap, they also
need to be considered separately. The latter presents a real challenge to NGOs,
whether or not the military are present.
Medical Assistance
The essential dilemmas faced by those NGOs providing medical services are
very similar to those in the field of humanitarian assistance generally,
compounded by questions of medical ethics. Impartiality becomes
individualized. The individual doctor is required to treat patients simply by
reference to medical need. 58 This may be part of the explanation behind a
distinction in the operating practice of the ICRC and MSF. For the ICRC, the
provision of medical services is usually part of a larger operation. Its practice is
to insist on working on both sides of a conflict in order to protect its own
neutrality and impartiality. On the other hand, MSF, which similarly adheres to
impartiality, sees no conflict between principle and only working on one side,
or indeed in only one zone of one side, of the conflict. MSF medical personnel in
the exercise of their functions are impartial. They will treat by reference to
medical need alone, wherever they happen to be exercising those functions.
MSF and the ICRC can work alongside one another, but MSF is also to be found
where the ICRC does not or cannot go. 59
The two organizations also take very different positions in relation to
cooperation with human rights investigators and the two ad hoc war crimes
tribunals. Again, in the case of the ICRC this may be partly attributable to the
fact that it engages in a wider range of activity than the merely medical. There
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is clearly a possible question of the confidentiality of the doctor-patient
relationship. 60 Giving information with consent, however, is clearly a different
question, and the two organizations take very different positions on it. (That
will be discussed further in the next section.)
There is one particular medical issue that concerns not only these two
organizations, but a wide range of other NGOs. It is best exemplified by the case
of Irma Hadzimuratovic, a little girl who was seriously injured in Sarajevo in an
incident in which her mother was killed. 61 She needed very swift medical
intervention, which the medical personnel in Sarajevo were unable to provide
because of their inadequate resources. Irma was eventually evacuated, thanks
to the intervention of the British Prime Minister. It was, however, too late. Her
injuries were by that time much harder to treat than they would have been, and
she died some time later.
This raises some problems similar to the humanitarian assistance/protection
debate, compounded by the question of evacuation. Is the answer to improve
the quantity of medical relief if you are simply patching someone up to be
injured again later? Is it better to evacuate injured persons for medical
treatment if they then have to be returned to a war zone, than to do your best in
situl Should children be evacuated, but only with their parents? 62
There were and are, in fact, criteria for determining questions of medical
evacuation. 63 Irma was regarded as not coming within them. It might be useful
if these were reexamined by, among others, the World Health Organization,
the United Nations Children's Fund (UNICEF), medical and children's NGOs
and as wide a range of interested parties as possible. There may be no need for
change, but there does seem to be a need for at least a reconsideration of the
issue.
Neutrality, Impartiality and The Reporting of Violations of
Humanitarian Law and Human Rights Law
Reporting. Human rights NGOs carry out their function by gathering
information, analyzing it in terms of the applicable legal norms, and then
publishing the results. To effect change, they need publicity and campaigning.
While they would deny that they are other than impartial, their activities may
be seen to be, or be claimed to be, "political." Indigenous human rights NGOs,
where they exist, may be particularly vulnerable to suppression. International
human rights NGOs tend to work from outside the conflict zone, with only a
very limited field presence.
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Traditionally, relief agencies kept their distance from human rights NGOs,
for a variety of reasons. 64 Particularly during the Cold War, human rights
activities were seen as "political." The relief agencies were also worried about
stepping outside their "mandate," and there was perhaps a concern about the
NGO equivalent o( "mission creep." They also saw cooperation with human
rights NGOs as calling into question their independence and impartiality. They
were worried about the use that might be made of information supplied to
another organization and about the protection of witnesses. They were also
concerned that their own access to civilian populations would be jeopardized if
they were known to be supplying information to other organizations. Last, but
by no means least, they felt ignorant about human rights law, which seemed to
them a very different type of activity. They did not know on what to report.
There is no doubt that humanitarian agencies have a much larger field
presence than human rights NGOs. They also encounter, on a day-to-day basis,
the possible victims of violations o( human rights law and humanitarian law. 65
Humanitarian NGOs are the passive recipients of information and, in other
cases, are well placed to gather the relevant information more positively.
The situation in Rwanda seems to have marked a turning point. Oxfam was
the first agency to declare that what was happening was genocide, and it paid a
price for doing so. The attitude of NGOs who were blind and/or silent about
what was going on around them, provided they could deliver humanitarian
assistance, was heavily criticized in a paper by African Rights. 66
Rwanda precipitated a period of soul searching on the part of relief NGOs.
The first sign o{ a breakthrough was when a significant number of them
recognized that evaluating actions in the context of human rights norms did
not represent any loss of impartiality. That is to say that, while it may be done in
a one-sided way, such reporting is not inherently partial or one-sided. The
second breakthrough occurred when the relief agencies stopped to examine
their oft-repeated mantra — "neutrality, impartiality, and independence." The
ICRC principles dictate that its activities must be based on neutrality and
impartiality. 67 Many relief NGOs became very suspicious of neutrality, seeing it
as an excuse for remaining silent in the face of atrocities. If neutrality meant
never taking sides, they wanted to take the side of upholding universal legal
norms based on the rights of all individuals everywhere. They were on the side
of victims o{ violations, whoever they were. In other words, they would be
evenhanded in applying the same principles to everyone. This led them to
proclaim their impartiality and independence, but not their neutrality. 68
While this evolution facilitated improved cooperation between relief NGOs
and human rights NGOs, it did not, and could not hope to, remove all the
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problems. Some difficulties, such as the need to provide a minimum of human
rights law training to relief personnel in the field, can be addressed over time.
Others are more problematic. Whether being known to provide information to
human rights NGOs will result in a relief agency being ordered out of the
country or denied continued access to the population in need cannot be
answered in the abstract. The experience in that regard is not all negative.
Indeed, as noted at the Medecins sans Frontieres Conference in February 1996,
"the real risks to our operations and our ethics lie in silence. And there are
plenty of examples where human rights advocacy has in fact increased access to
the victims and improved the safety of our staff, as was the case in Burundi." 69
The protection of witnesses is also a very real problem, as the experience of
those who have testified in Arusha, Tanzania, before the war crimes tribunal
and then returned to Rwanda has shown.
There may, nevertheless, be a shift in attitude. If the starting point of relief
NGOs is that they will gather information, in some cases seek it, and then pass it
on to responsible human rights NGOs (where they feel it to be safe to do so and
where they have the requisite guarantees as to the use to which the information
will be put), then the effectiveness of human rights reporting could be
transformed. Even if the relief agencies were only able to indicate likely
witnesses and sources of information, this would still be of considerable
assistance.
What is particularly striking is the leading role played by a medical NGO in
promoting the cooperation between relief agencies and human rights NGOs.
They might have been thought to have the biggest problem with the sharing of
information. Nevertheless, MSF has taken the lead and may have encouraged
other NGOs by its example. Of course, there is a separate question in relation to
the sharing of information. It is one thing to cooperate behind the scenes with
human rights NGOs. It is quite another thing to give evidence in criminal
proceedings before an international criminal tribunal.
Giving Evidence, While the ICRC's policy is never to cooperate in this way,' 1
some intergovernmental agencies, such as UNHCR, have sought to strike a
balance between protecting their clients' confidentiality and giving evidence.
Other organizations and individuals, even within the same group, have taken
differing positions/ 2 Again, MSF has been in the forefront of those promising
the greatest possible cooperation with the tribunals. In relation to the giving oi
evidence at the request of the prosecutor, the rules of evidence give NGOs a
certain protection/ 3 It remains to be seen what will happen when the defense
seeks to call an NGO employee as a witness and argues that the testimony is
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Franqoise Hampson
vital for a fair disposal of the case. If the judges agree and subpoena the
individual in question, a refusal to appear may result in contempt proceedings,
even, it would appear, in absentia. 7 * It is to be hoped that the judges will
recognize that in some cases there may be legitimate grounds for the refusal to
answer a question. That will be, and should be, determined by the judge and
not the NGO employee.
Advocacy and Campaigning, The twin issues of advocacy and campaigning
raise many of the same issues for NGOs as the reporting of violations of human
rights and humanitarian law. In some cases, the law on charities imposes
restrictions. 75 Some organizations have, nevertheless, become frustrated by
only treating symptoms and have begun to campaign about the causes of the
problems which they are there to address. Oxfam and Christian Aid, for
example, have campaigned regarding the causes oi poverty and the cycles of
emergencies. Handicap International, a French-based NGO that provides
prostheses, became concerned about the extent of the need for artificial limbs
on account of injuries from anti-personnel land mines (APMs) and put pressure
on the French government to call for a conference to review the 1980
Conventional Weapons Convention. 76 This resulted in the revision of Protocol
II of that Convention relating to the use of land mines. 77 While the revised text
marked a considerable achievement, most notably by extending its application
to non-international conflicts, it fell far short of what NGOs perceived to be the
need — an outright ban on the use of APMs. (The Review Conference also
adopted a new fourth Protocol on blinding laser weapons.) 78 Subsequently, a
group of States, led by Canada, decided to negotiate a treaty banning the use of
APMs, which was signed in Ottawa by 120 States in December 1997. 79
The campaign to ban the use, manufacture, and stockpiling o{ anti-
personnel land mines has been a quite remarkable achievement for NGOs.
Even five years ago, it was unthinkable that such a treaty ban could be
achieved. One may question the impact that the Ottawa treaty banning the
use oi APMs will have, since the most important users and manufacturers of
APMs are not Parties to it, but this does not detract from the achievement of
the NGOs. 80
This was not the work of one NGO or even of a linked group, such as medical
NGOs. 81 It represented a remarkable feat of organization to create a small
international committee, with a coordinating function, and national
organizations, consisting of a loose coalition of NGOs. The arrangements had
to be both loose and flexible, to cope with the variety of mandates, objectives,
and campaigning methods of the different types of organizations involved.
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NGOs in Situations of Conflict
Participating groups included children's organizations, development NGOs,
refugee groups, relief organizations, human rights NGOs, and arms trade
groups. All these groups were able to find something which they were able to
contribute to the campaign.
The important question for the future is whether this is a precedent or a
"one-off phenomenon. Certain features of the APM issue made it an ideal
subject for a campaign. The scale of the problem was, and is, enormous. The
principal casualties are civilian. It was relatively easy to understand the
technology. The message was simple: what was sought was an outright ban on
use, in which case a ban on manufacture and stockpiling was logical. The
nature of the injuries and of the victims made a significant visual impact. One
only has to consider the campaign on laser weapons designed to blind, which
was running at the same time as the land mine campaign, to see how
significant such features are. There were essentially only two organizations
campaigning about laser weapons, the ICRC and the Arms Project of Human
Rights Watch. 82 Those lobbying understood the technology and the issues,
but there was never the mobilization of public opinion that occurred in
relation to APMs.
The key question then becomes whether there are other weapons that might
provoke the same reaction in the public as land mines. Concern has been
expressed about the use of small caliber ammunition and cluster weapons, but
it seems questionable whether they would lead to a mass campaign. 83 It is more
likely to be the specialist NGOs that become involved. If a conflict were to
occur with a widespread use of incendiary weapons, that issue might become
the focus for a campaign but there is no sign of that at present. There may now
be a generally higher level of awareness and concern about the environmental
impact o( spent munitions and the insecurity which both causes, and is the
product of, high levels of expenditure on conventional weapons, but it seems
unlikely that that awareness will become sufficiently focused to produce a
campaign as effective as that to ban land mines.
At present, it would seem that the land mine campaign is likely to be unique,
at least in its scale of public mobilization and the range of participating NGOs.
Nevertheless, there are NGOs well placed to campaign about the use of other
weapons, and a precedent now exists for a wide range of NGOs to work
together. The first group will continue to be involved in campaigns about
specific weapons. It is not possible to predict whether one of those weapons will
seize the imagination of the public. It takes an unusual combination of factors
to do so.
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The Accountablity of NGOs
Accountability is not, in this context, confined to legal accountability,
although it goes without saying that NGOs are subject to the laws of the places
in which they work. It includes moral responsibility, particularly where third
parties treat NGOs as having some such responsibility for their actions. It also
includes accountability in the sense of cause and effect. Where a person or
body responds to the activities of an NGO in a way that affects the ability of the
NGO to continue with those activities, this might be seen as de facto or effective
accountability, irrespective of whether it is "justified" or even reasonable. The
NGO has to take into account the possibility of such a reaction when
determining its course of action.
In a more restricted sense, accountability usually involves the attainment of
goals. A person or body evaluates the performance of the NGO by reference to
objective criteria. This requires both measurable goals and objective criteria of
evaluation. When the beneficiaries of action are people, there are the usual
difficulties in determining whether there should be a qualitative, and not
merely quantitative, evaluation and, if so, how to set about it. Is it necessarily
the case that NGO One is "better" because it delivers 1,200 tons of relief in the
same time and/or for the same cost that NGO Two delivers a thousand tons? Is
it necessary to consider the accountability of NGOs to recipients/beneficiaries
and also to donors, both individuals and States? Consideration also needs to be
given to the relationship between accountability and the role of the media.
Accountability to Recipients/Beneficiaries, Development NGOs have had, for
quite some time, a sense of responsibility toward the people whom they are
trying to help. 84 There has been a shift over the past forty or so years from the
sense that the recipients are the beneficiaries of charity to a perception that the
NGOs are working in collaboration with the local community. This has been
articulated through such concepts as empowerment and participation, and has
led to greater reflection about the impact of assistance within the community.
These ideas began naturally to "leak" from development to relief operations.
There is a different paradigm in the case of activities relating to violations of
human rights or humanitarian law. Human rights NGOs and the ICRC have
been acutely aware of the potential risk to individuals, rather than the
community, in publicizing names. It may be, but this is speculation, that the
preoccupation of development/relief NGOs with communities rather than
individuals contributed to their silence in the face of human rights violations.
The recent recognition by relief NGOs that assistance cannot be divorced from
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NGOs in Situations of Conflict
protection suggests that their position is evolving. It may be that their focus on
communities means that they will only become engaged in protection activities
where the violations are widespread and systematic. Provided they recognize
that unpunished individual violations may become a practice, it may be
necessary, in order to achieve a sensible distribution of roles, for relief NGOs to
become involved in action only in the case of widespread violations. Human
rights NGOs are probably better suited to dealing with individual cases. In that
situation, relief agencies could help by passing on information.
It may be significant that MSF, a medical organization, is at the forefront of
moves to get relief NGOs to consider the issue of protection. While medical
activities might seem to be a type o{ relief action, they do involve the
relationship between an individual patient and medical personnel. In other
words, medical NGOs do not function only at the community level.
Ultimately, it does seem that all NGOs have a sense of responsibility toward
recipients/beneficiaries. However, the form it takes differs, depending on the
type of activity involved.
Accountability to Donors. It is necessary to draw a distinction between
accountability to individual donors and to State or organizational donors, not
least because the two constituencies may impose competing, if not conflicting,
demands. In addition, organizations and States are more likely to require
accountability in the most literal sense. The administration and control
involved may deter some NGOs from even seeking such funding. Two different
ideas may become confused in the minds of NGOs. One is accountability,
which is some type of obligation to another person or body. The other is the
desire of NGOs to carry out their activities in as many of the places where they
are needed as possible. This requires money. It would be understandable if they
sought to tailor their activities to what is most likely to appeal to their donor
constituencies. This is not the same thing as an obligation of accountability to
donors, even if it is articulated in those terms.
Individual donations may be closely linked to media coverage of the
epicenter of a crisis. In that case, the NGO has to be seen to be there. On the
other hand, State or organizational funding may have strings attached, either
conditionality or something that looks like it. The NGO then has to determine
whether it is simply interested in raising as much money as possible, or whether
it has a view as to the maximum possible funding from one particular source
which is consistent with its independence. For some this may mean a refusal to
accept any governmental funding. That is more likely to be the case for human
rights NGOs than for relief/development NGOs.
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Franqoise Hampson
The need to maintain donor support and/or accountability to donors may
have a direct impact on the activities undertaken. In particular, it may prompt
an NGO to be involved in a highly visible relief program, irrespective of the
price paid in terms of the diversion of relief or silence in the face of serious
violations of the law.
Accountability and the Media, To consider generally the role of the media in
conflict situations is beyond the scope of this paper. 85 Some commentators
appear to assume that there is a "CNN factor," while others dispute that it has
the significance often ascribed to it. 86 Some journalists think their role is to be
objective and detached, whereas others aspire to what Martin Bell has
described as "the journalism of attachment." That does not mean biased
reporting: it means identifying with and conveying the plight of victims and
daring to express anger and outrage.
As seen above, donor support may be affected by the coverage oi an NGO's
activities. That may, in turn, put pressure on the NGO to be not where there is
most need or the greatest possibility of effective action, but where the cameras
are. In some cases, NGOs can determine where the cameras go. The NGOs may
be a principal source of information for the news media and also a source of
relatively secure transport.
NGOs are generally aware of their need for media coverage and, over the
years, have spent effort and resources in developing professional media
strategies. It is less clear whether they are aware of possible dangers in their
ambiguous two-way relationship with the media. In seeking to use the media to
their own advantage, they may also be, deliberately or inadvertently,
manipulated. It may be necessary to distinguish between the print media and
television. When reference is made to the "CNN factor," it is only the latter
which is being considered.
The question in this context is the extent to which NGOs are accountable
for, first, the impact of media coverage where they make the coverage possible
or are the subject of the coverage and, second, the effect of that coverage on
their own operations. At the very least, this is a question that responsible NGOs
should be asking themselves.
The Future
Speculation is an inherently hazardous activity. It is not possible simply to
examine where NGOs are now and to project that forward. There are many
other variables, all of which will interact with one another, and which need to
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NGOs in Situations of Conflict
be taken into account. First, there are possible changes in the causes and forms
of conflict. Second, there is uncertainty as to the likely international response.
The international community may decide that acute crises are too difficult to
handle and must simply be contained until they burn out, or else it may
discover the will to seek real solutions. Third, IGOs may adjust their priorities
and modi operandi in various ways.
It is possible, on the basis of recent experience, to draw up a nightmare
scenario. In it, parties to a conflict seek an unlawful goal and consequently
engage in systematic violations of humanitarian law. The only concern of
NGOs is to ensure that people are fed. They turn a blind eye to the fact that
many victims will be dead in a few hours or a few days. Armed forces external to
the parties to the conflict are helpless, either owing to inadequate numbers and
equipment and an inappropriate mandate or else a fear of casualties, which
means that they only move in such large numbers as to be incapable of
influencing the situation on the ground. States, in the meantime, use assistance
as a substitute for policy and as an excuse for closing frontiers to prevent mass
movement of people. Some of these elements have been present in many
recent conflict situations. If they are not to recur, lessons must be learned.
There is evidence that at least some NGOs are biting the very painful bullet.
They have at least recognized that assistance needs to take account of the need
for protection. There is not much value in "better fed than dead" if the
recipients are going to be killed later. Some NGOs know they have to strike a
difficult balance; discovering appropriate ways of doing so will not be easy. The
ICRC, in some ways, exemplifies the dilemma. It has a wealth of experience and
is used to relying on its demonstrable neutrality and impartiality. At the same
time, this "guardian of humanitarian law" refuses to allow its delegates to give
evidence before war crimes tribunals. There will be a certain degree of trial and
error as NGOs seek a way forward, and no two situations are the same. Some of
the NGOs are, nevertheless, looking for practical solutions. 87 It seems likely
that there will be a split in the NGO community. Some will insist on delivering
assistance, whatever the price. This group will include not only "cowboys," but
those who see themselves as idealists. Others will, with reluctance, see how the
wind is blowing, in particular with respect to State and organizational donors,
and go along with it. Still others will be convinced of the need for adjustment,
seeing it as providing more net help.
In this situation, it is not the responsibility of only the NGOs to adapt and
change. States, particularly members of the Security Council, have a huge
responsibility. They have so far proved incapable of responding to an
impending crisis, even where the NGOs and the UN machinery have made it
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Franqoise Hampson
clear what is at stake. Nor have States so far shown a willingness to bite their
respective bullets. It is possible that the greatest single contribution that could
be made to protecting victims from atrocities would be by breaking the cycle of
impunity everywhere. The law of armed conflict is a useful tool because it is
based on the equality of belligerents (in other words is impartial) and is based
on individual criminal responsibility. To break the cycle of impunity requires
an effective international criminal court with an independent prosecutor.
States have to be willing to surrender their own soldiers to its jurisdiction. If
they create a tribunal with fairness and integrity, and if they train their soldiers
not to break the rules, they have nothing to fear from such a court. There is a
great deal to gain.
If those resorting to force know that they are likely to be tried if they
prosecute the conflict in unlawful ways, but will not be subject to the
jurisdiction of the court if they only target combatants and military objectives,
this might have a significant effect on their conduct. Not only would it
facilitate the task of NGOs in negotiating access for humanitarian assistance,
but the fighters would implicitly be recognizing the legitimacy of NGO
involvement in the promotion of the rule of law by providing protection. If the
belligerents recognize that there are unlawful ways of fighting, it cannot be a
sign of bias or lack of neutrality to seek to uphold the law.
Only States, acting diplomatically and where necessary through their armed
forces, can break the cycle of impunity. Only States can set effective controls
on the transfer of weapons. Only States can wield the sticks and carrots
appropriate to a particular situation. There is no shortage of rhetoric and hand
wringing. There is, to date, a lack of effective action.
The NGOs, armed forces, and donor States are going to have to surrender
long-cherished ideas if they are to reach an accommodation. They have
learned that they cannot simply insist on doing things in their own way,
without regard to others. They will have to recognize and adjust to the
priorities and needs of the other players. This does not mean that they have to
adopt them. The first step would be if they all spoke the same language. If they
used humanitarian law, human rights law, and refugee law as tools, they might
not say the same thing, but they would at least begin to understand one
another.
This is beginning to happen between armed forces and at least some NGOs,
and is most likely between those who have shared the experience on the
ground. Donor States are reexamining questions of humanitarian assistance,
but there is less evidence that they are assuming their particular responsibilities
in relation to conflict prevention and breaking the cycle of impunity.
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NGOs in Situations of Conflict
NGOs, armed forces, and donor States have recognized that they have the
same ultimate goal — the effective assistance and protection of victims. They
have also recognized that they need to search for ways forward, both separately
and together. There is still a long way to go before they convert these ideas into
practical solutions to the problems faced on the ground.
Notes
1. Medecins sans Frontieres (MSF) Holland, for example, organized a conference in
Amsterdam on February 9, 1996. Conference on the Co-operation between Humanitarian
Organisations and Human Rights Organisations. See also Symposium on Humanitarian Action
and Peace-keeping Operations, Geneva, June 22-24, 1994, ICRC (Palwankar ed.); von Fltie,
International Humanitarian Law and Protection, Report of the Workshop, Nov. 18-20, 1996,
ICRC. The Asser Instituut in the Netherlands has organized seminars on UN law, human rights,
and humanitarian law for Dutch NGO personnel. It is worthy of note that the NGO search for
solutions to practical problems has involved training in the applicable legal norms. This suggests
a useful role for the law not only in denning acceptable and unacceptable forms of conduct, but
also as a common language of discourse through which actual experience can be articulated.
2. By "peacekeeping" is meant an operation based on the consent of the parties at every
level, operational and tactical, in which the forces act impartially and can only use force in
self-defense. By "peace enforcement" is meant an operation in which force can be used to
achieve the mandated objective, not denned in terms of one of the parties. Force is to be used
impartially or evenhandedly. There is no need for consent to the presence of the force at every
level, though there will generally be some form of strategic political consent, probably
halfhearted. See generally Hampson, States' Military Operations Authorized by the United Nations
and International Humanitarian Law, in THE UNITED NATIONS AND INTERNATIONAL
Humanitarian Law, 371-426 (Condorelli ed., 1996).
3. E.g., UNHCR during the United Nations Provisional Force (UNPROFOR) operation in
Bosnia-Herzegovina.
4. E.g., the issue of military escorts for the delivery of humanitarian assistance. See infra.
5. The role of the church and church agencies is not included, as such, within the scope of
the text. Where a "religious" organization (e.g., Christian Aid) is involved in development or
relief, it is considered along with other similar agencies. The specific role of the church is not,
however, considered. It should be noted that the form of organization of the church, notably the
existence of educated parish priests throughout a territory, represents a potentially invaluable
source of detailed information, particularly in the human rights field. Individual priests and
ministers, and the church itself, may play a more sinister role, as is alleged to have happened in
Rwanda. See AFRICAN RIGHTS, RWANDA: DEATH, DESPAIR AND DEFIANCE (1994); AFRICAN
Rights, Witness to Genocide, No. 1, (Oct. 1995).
6. In particular, it is not uncommon for development agencies to remain in theater,
adapting their projects to meet the needs of emergency relief, but in the context of their
longer-term development goals.
7. E.g., Save the Children Fund (SCF) in Somalia.
8. Some NGOs have specific projects which focus on women's needs in the context of a
broader overall project, e.g., Ethiopia's Addis Ababa Fistula Hospital project. Other NGOs
concern themselves with the role of women in particular societies, notably with regard to health
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Frangoise Hampson
issues and some agricultural concerns. The formal or informal education of women assumes a
particular importance. Even those NGOs which are specifically trying to assist children, such as
SCF, often do so through their mothers.
9. Wateraid seeks to assist in providing reliable access to safe drinking water. Intermediate
Technology works with communities to develop an appropriate and locally sustainable
technological solution to their problem.
10. E.g., Oxfam, SCF, and other well established development NGOs. See generally
Natsios, U.S. Foreign Policy and the Four Horsemen of The Apocalypse, ch. 4
(1997).
11. Certain development NGOs positively seek to work through such structures to
encourage participation at all levels to avoid the risks of dependency and to promote
sustainability. Even when political governmental structures have broken down, administrative
structures may continue to function for a time (e.g., SCF's experience in Somalia). This gives
development NGOs an advantage over incoming relief NGOs when the situation deteriorates
into conflict. The former have already established contacts and have built up trust. See generally
Edwards & Hulme, Non-governmental Organisations: Performance and
Accountability, ch.l (SCF and Earthscan, 1995).
12. This can be a problem in relation to the delivery of humanitarian assistance by relief
agencies. See infra.
13. Relief in the form of foodstuffs can have the effect of undermining such activity as there
is in the agricultural sector. In some cases, the provision of seeds and tools might provide
significant quantities of food while encouraging the maintenance of local economic activity. See
generally MACALISTER-SMITH, INTERNATIONAL HUMANITARIAN ASSISTANCE: DISASTER
Relief Actions in International Law and Organizations (1985); Macrae & Zwi,
War and Hunger (1994).
14. E.g., in some areas in Somalia.
15. This was a particular problem in the case of the former Yugoslavia, probably owing to its
proximity to and easy access from Western Europe.
16. This was said to be a problem for certain NGOs in relation to relief activities in Rwanda
and adjacent States.
17. In the UK, seven big British aid agencies make up the Disasters Emergency Committee
(DEC) to coordinate fund raising and avoid charges of poaching funds in each other's
constituencies. In the early 1990s, the fight both to raise funds and to maintain a high profile
with donors put the DEC under more strain than at any time in its nearly thirty year history. THE
Independent, Dec. 21, 1994.
18. Intl Rev. Red Cross, No. 310, 1996, at 73, 1 19-127.
19. The significance of the role of governments as donors, directly or indirectly (as through
European Union (EU) mechanisms) runs the risk of distorting the activities of NGOs and calling
into question their independence. They need to maintain a balance between donor income,
which ensures their ability to undertake independent action, and ear-marked governmental
funding. The more they are dependent on governmental funding, the more they appear to be no
more than subcontractors, and the more a government may be tempted to dictate terms.
20. This often involves issues of reproductive health, such as female circumcision and
contraception.
21. E.g., Sightsavers which specifically assists in treating eye- conditions and in training local
medical personnel to provide basic eye-care treatment.
22. See generally TORELLI, LE MEDEC1N ET LES DROITS DE L'HOMME (1983).
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NGOs in Situations of Conflict
23. Since the ICRC surgeons have more experience in the field than most doctors with
armed forces, the latter sometimes undertake placement in ICRC field hospitals in order to
obtain the necessary experience.
24- On MSF, see LAURENT, MEDECINS SANS FRONTIERES: LA OU LES AUTRES NE VONT
PAS (1980) , more recently LIFE, DEATH AND AID Qean ed., 1993) , and the conference referred
to in note 1. On the ICRC generally, see HAUG, HUMANITY FOR ALL (1993), especially ch. 3;
BUGNION, LE COMITE INTERNATIONAL DE LA CROIX-ROUGE ET LA PROTECTION DES
VlCTIMES DE GUERRE (1994). For the view of a very well informed "outsider," see FORSYTHE,
Humanitarian Politics: The International Committee of the Red Cross (1977).
25. On the contents of medical ethics in time of conflict, see TORELLI, supra note 22, and
Hampson, Conscience in Conflict: the Doctor's Dilemma, 27 CAN. Y. B. INTL L. 203, 211-215
(1989).
26. For an excellent account of what "triage" actually involves in the context of operations
conducted by medical personnel with armed forces, see McMANNERS, THE SCARS OF WAR, ch.
10 (1993), especially pp. 262-3. For a recent example of the real dilemmas which confront
medical personnel, see Incidents regarding the medical assistance provided to civilians by the Dutch
Defence Hospital Organization (KHO) in former Yugoslavia, Report by the Inspectie voor de
Gezondheidszorg, 1996, Rijswijk. Something analogous to the principle of "triage" might be of
assistance to relief agencies. See infra.
27. E.g., FIAN deals specifically with the right to food and the Centre on Housing Rights and
Evictions (COHRE) with the right to housing.
28. SCF (UK) is increasingly using the language of the UN Convention on the Rights of the
Child.
29. The thematic Rapporteurs include the Rapporteurs on Torture and on Extra-judicial,
Summary and Arbitrary Executions. Special Rapporteurs are country specific. States which have
ratified the International Covenant on Civil and Political Rights (ICCPR) have an obligation to
submit periodic reports on implementation, on which they are questioned by the Human Rights
Committee. It should be noted that nonderogable human rights, which include the prohibition
of torture, cruel, inhuman, or degrading treatment or punishment and the prohibition of
arbitrary killings, remain applicable in situations of conflict. The State is responsible under
human rights law for the actions of its armed forces, even where they act extraterritorially. See
generally, THE UNITED NATIONS AND HUMAN RIGHTS (Alston ed., 1992), and McGOLDRICK,
The Human Rights Committee (1994).
30. Rodley, Can Armed Opposition Groups Violate Human Rights, in HUMAN RIGHTS IN THE
Twenty-First Century: A Global Challenge (Mahoney & Mahoney eds., 1993).
31. This has even extended to full-scale international armed conflicts. See, e.g., MIDDLE
East Watch, Needless Deaths in the Gulf War (1991) . The application of some of the
legal rules to the particular facts in that report is, in some cases, controversial.
32. E.g., Amnesty International, Israel/Lebanon, Unlawful Killings during Operation
"Grapes of Wrath," in particular the analysis of the Israeli attack on the UN compound at Qana,
on April 18, 1996.
33. See generally the papers produced for a DFID/Human Rights Centre, University of Essex
Conference on the Promotion and Protection of Human Rights in Acute Crisis, Feb. 11-13,
1998.
34. Minear, Scott & Weiss, The News Media, Civil War and Humanitarian
Action 53-57 (1996); See also Sahnoun, Somalia— The Missed Opportunity (1994);
African Rights, Somalia, Operation Restore Hope: A Preliminary Assessment
(1992).
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Franqoise Hampson
35. ICRC sources, cited supra note 24. Plattner, ICRC Neutrality and Neutrality in
Humanitarian Assistance, INTL REV. RED CROSS, No. 311, 1996, at 161-179.
36. Following its recent experiences in Somalia, Rwanda, the former Yugoslavia, and
Chechnya, among others, the ICRC has engaged in considerable soul searching regarding its
modi operandi and in particular how to protect ICRC personnel from deliberate attack. This
suggests that it is willing at least to contemplate changing its methods of operation should that
prove necessary and desirable. It is less clear that any changes have, in fact, resulted from this
process.
37. NATSIOS, supra note 10, at 73.
38. At the conference referred to in note 33, one suggestion was that when armed forces
prepare contingency plans, well before there is any question as to their actual deployment, they
should work together withNGOs and IGOs. Even if a particular plan were not implemented, the
experience might contribute to mutual understanding. On the issue of military-NGO
cooperation, see Roberts, Humanitarian Action in War, Adelphi Paper 305, 1996, at 65-69, and
Palwankar, supra note 1.
39. MSF conference, supra note 1.
40. Even if there is a cease-fire, these activities can pose very real difficulties in the
immediate aftermath of conflict. It may be that the disarming of fighters is best done by military
forces, but the training of police by an international civilian police force, preferably unarmed.
Examples of the difficulty in disarming former fighters include Angola and the position in
Banja-Luka, Bosnia- Herzegovina, in the summer of 1997.
41. Hampson, conference paper, supra note 33.
42. A comprehensive review of the lessons to be learned from the operation in Rwanda is to
be found in STEERING COMMITTEE OF THE JOINT EVALUATION OF EMERGENCY ASSISTANCE
to Rwanda, The International Response to Conflict and Genocide: Lessons
FROM THE RWANDA EXPERIENCE (5 vols., 1996). Sommaruga C, Strengthening the
Co-ordination of Emergency Humanitarian Assistance, INTL REV. RED CROSS, No. 304, Jan-Feb.
1995, at 81-86; Fuchs, Emergency Co-ordination — A Problem of Humanitarian Agencies or Rather
of Policiticians and Generals?, in id. at 87-93.
43. For the definition of an international armed conflict, see common Art. 2 of the Geneva
Conventions of 12 August 1949 and Art. 1.4 of Protocol I of 1977, Additional to the Geneva
Conventions of 12 August 1949; for the prohibition of starvation as a method of warfare,
Protocol I, Art. 54 (1) . For treaty texts, see ROBERTS & GUELFF, DOCUMENTS ON THE LAWS OF
WAR (2d ed., 1989). See generally Allen, Civilian Starvation and Relief during Armed Conflict: The
Modem Humanitarian Law, 19 GEORGIA J. INTL & COMP. L. 1 (1989); Shotwell, Food and the
Use of Force: The Role of Humanitarian Principles in the Persian Gulf Crisis and Beyond, 30 MlL. L.
&L. OF WAR REV. 345 (1991); Famine and War (report of an ICRC Seminar by Mourey) , INTL
REV. RED CROSS, No. 284, 1991, at 549; Plattner, Assistance to the Civilian Population: the
Development and Present State of International Humanitarian Law, in id., No. 288, 1992, at
249-263; MACALISTER-SMITH, supra note 13.
44. Protocol I, art. 70(1).
45. Id., art. 70(2).
46. Id., art. 70 (3).
47. Id., art. 71(1). The protection of NGO relief personnel from attack has been of increasing
concern. ICRC delegates, for example, have been the victims of intentional attacks. The answer
of the international community has been the UN Convention on the Safety of United Nations
and Associated Personnel, G.A. Res. 49/59, Feb. 17, 1995, 34 I.L.M. 482. It may have a limited
role to play in the protection of such personnel, where they come within its terms, but the major
259
NGOs in Situations of Conflict
problem is likely to be, as usual, enforcement. The general objection of this author to the
Convention in relation to peace enforcement personnel does not apply in relation to associated
personnel, but the criticisms based on the drafting are still relevant. See Hampson, The Protection
of "Blue Helmets" in International Law, 36 MIL. L. &L. WAR REV. 203 (1997).
48. Note the high threshold for the applicability of Protocol II of 1977, Additional to the
Geneva Conventions of 12 August 1949, even if it has been ratified by the party in question.
Protocol II, art. 1. On humanitarian assistance, see id., art. 18.
49. Id., art. 14.
50. Common art. 3, Geneva Conventions of 1949. The article is binding on the parties (not
just individuals) to a non-international conflict; in other words, it is not binding just for the State
forces. Contrast human rights law, Rodley, supra note 30.
51. The deteriorating respect for international humanitarian law led to the calling of an
International Conference for the Protection of War Victims, consisting inter alia of High
Contracting Parties to the Geneva Conventions, in the summer of 1993. The Conference asked
for an Intergovernmental Group of Experts to study practical means of promoting full respect for
and compliance with international humanitarian law. Following a preparatory meeting, the IGE
met in January 1995. The recommendations focused principally on the need for increased
dissemination and domestic implementing legislation. While these may be necessary, it is
submitted that it is inconceivable that they will be sufficient. Effective enforcement, including
measures by States to persuade other States to exercise jurisdiction, is essential.
52. On the need for improved protection, see MSF, Conference, supra note 1 ; Roberts, supra
note 38. On "safe areas," see Hampson, supra note 2, especially pp. 407 and 413.
53. MSF, Conference, supra note 1; ICRC, Workshop, supra note 1; MacKintosh,
International Responses to Acute Crisis: Supporting Human Rights Through Protection and
Assistance, paper for conference at supra note 33.
54. Hampson, supra note 2, at 413.
55. Id. at 383-386; Roberts, supra note 38, at 39-44.
56. Roberts, supra note 38, at 82-84- The hard choices bear a certain ressemblance to
"triage" in the medical field.
57. An example of such a doctrine is the British Army Field Manual, Peace Support
Operations, First Draft, 1997. A possible functional distribution of roles is that the military
should first create the conditions in which assistance can be delivered and protection afforded to
civilians, possibly in demilitarized and geographically defined "safe areas." Then it might be
easier for such assistance to be delivered and protection offered without the need for a high
profile military presence. The forces would still need to be in theater and might need to patrol the
perimeter of "safe areas."
58. Supra note 25.
59. Working together; MSF, Conference, supra note 1, at 17. MSF appears to have been the
only external medical NGO in Srebrenica. Supra note 26.
60. There is a significantly qualified recognition of the confidentiality of the relationship in
international law. Protocol I, art. 16(3) and Protocol II, arts. 10(3) and (4).
61. Di Giovanni, The Quick and The Dead: Under Siege in Sarajevo 135-147
(1994).
62. Hampson, Legal Protection Afforded to Children under International Humanitarian
Law, a report prepared for the Machel Study on the Impact of Armed Conflict on Children 66;
Plattner, Protection of Children in International Humanitarian Law, INT'L REV. RED CROSS No.
240, 1984, at 140; Singer.The Protection of Children during Armed Conflict Situations, INT'LREV.
Red Cross, No. 252, 1986, at 133.
260
Franqoise Hampson
63. Di Giovanni, supra note 61, at 144.
64- MSF, Conference, supra note 1.
65. E.g., medical personnel may learn how patients received their injuries; those delivering
relief may learn how the recipients came to need it.
66. African Rights, Humanitarianism Unbound, Discussion Paper No. 5, November 1994. See
also Jean, supra note 24- On Rwanda, see AFRICAN RIGHTS, supra note 5.
67. BUGNION, supra note 24.
68. MSF, Conference, supra note 1, at 66.
69. Id. at 15.
70. Hampson, The International Criminal Tribunal for the Former Yugoslavia and the Reluctant
Witness, 47 I. C.L.Q. 50 (1998).
71. Id. at 69-70.
72. E.g., some journalists are willing to testify, but not others. Id. at 63.
73. Rules of Procedure, IT/32/Rev. 8, 23 Apr. 1996, rule 70; id. at 62-63.
74. Generally, the Statute of the Tribunal precludes trials in absentia, but the Appeal
Chamber expressly envisaged the possibility, in exceptional cases, of proceedings in absentia for
contempt where the addressee of a binding order fails to appear in Court, thereby obstructing the
administration of justice. Prosecutor v. Tihomir Blaskic, Judgement on the Request of the
Republic of Croatia for Review of the Decision of Trial Chamber II, July 18, 1997, Judgement of
Oct. 29, 1997, IT-95-14-AR108 bis, para. 59.
75. E.g., in the UK the activities of development/relief NGOs are generally charitable, which
brings considerable fiscal benefits. In the case of campaigning NGOs, such as Amnesty
International or the Campaign against the Arms Trade, only some, if any, of their activities are
considered charitable.
76. The full title is the United Nations Convention on Prohibitions or Restrictions on the
Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to
Have Indiscriminate Effects, reprinted in ROBERTS & GUELFF, supra note 43.
77. Conference of the States Parties to the Convention on Prohibitions or Restrictions on
the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or
to Have Indiscriminate Effects, Protocol on Prohibitions or Restrictions on the Use of Mines,
Booby-traps and other Devices (Protocol II) as amended, 35 I.L.M. 1206 (1996).
78. Protocol on Blinding Laser Weapons (Protocol IV), 35 I.L.M. 1218 (1996).
79. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction, 36 I.L.M. 1507 (1997).
80. In addition to the usual manifestations of a campaign, books were published associated
with the campaign. See eg., THE ARMS PROJECT AND PHYSICIANS FOR HUMAN RIGHTS, LAND
Mines: A Deadly Legacy (1993); Roberts & Williams, after the Guns Fall Silent:
THE ENDURING LEGACY OF LAND MINES (1995). The campaign also provoked interest and
publications in other quarters. See, e.g., CORNISH, ANTI-PERSONNEL MINES: CONTROLLING
the Plague of "Butterflies," (1994) ; U.S. Department of State, Hidden Killers - the
Global Land Mine Crisis (1994) ; The Military Utility of Land Mines . . .? (Smith ed.,
1996); Hampson, The Long Shadow: Land Mines and the Law of Armed Conflicts, Papers in the
Theory and Practice of Human Rights No. 12, Human Rights Centre, University of Essex.
81 . One of the significant features of the campaign is the mobilization of medical opinion led
by Robin Coupland of the ICRC's Division of Health Operations. This has acquired a
momentum of its own and is not confined to the impact on civilians, but is focusing on the nature
of the injuries caused by certain weapons. See Coupland, The Effect of Weapons: Defining
Superflous Injury and Unnecessary Suffering, 3 MEDICINE AND GLOBAL SURVIVAL, at Al (1996) ;
261
NGOs in Situations of Conflict
The Sirus Project: Towards a Determination of Which Weapons Cause
"Superflous Injury or Unnecessary Suffering" (Coupland ed., 1997).
82. ICRC, Blinding Weapons: Reports of the Meetings Convened by the ICRC
on Battlefield Laser Weapons, 1989-1991 (1993); Human Rights Watch Arms
Project, 7.1 Blinding Laser Weapons (1995).
83. Prokosch, Small Calibre Weapon Systems: Bringing the Dum-Dum Ban up to Date, Papers in
the Theory and Practice of Human Rights No. 11, Human Rights Centre, University of Essex,
1995; Prokosch, Cluster Weapons, Papers in the Theory and Practice of Human Rights No. 15,
Human Rights Centre, University of Essex, 1995. The development noted in note 82 (i.e., the
mobilization of professional medical opinion) may result in limited but effective campaigns on
particular weapon use, notably anti-personnel use of incendiary weapons.
84. E.g., Edwards & Hulme, supra note 11.
85. MlNEAR et al, supra note 34; Benthall, Disasters, Relief and the Media, 1993 LB.
86. Roberts, supra note 38, at 82; Gowing, Real-time Television Coverage of Armed Conflicts
and Diplomatic Crises: Does it Pressure or Distort Foreign Policy Decisions?, Press, Politics and Public
Policy Working Papers 94-1 , Harvard, 1994. See also Gowing's review of BELL, IN HARM'S WAY:
Reflections of a War Zone Thug (1995), in 6.4 Brit. Journalism Rev. 67 (1995).
87. E.g., the ICRC is organizing a workshop in March 1998 as a practical follow-up to the one
referred to in von Flue, supra note 1. The first workshop is seen as having involved general
discussion. The second is designed to be more practical and concrete.
262
The Law of Naval Warfare and
International Straits
Wolff Heintschel von Heinegg
WHEN IT COMES TO THE QUESTION OF WHICH RULES of
international law apply to international straits in times of naval
armed conflict, one has to distinguish between straits bordered by at least one
of the parties to an international armed conflict and straits bordered by States
that are not directly involved in the hostilities. Although the law of maritime
neutrality — let alone the general law of neutrality — is far from settled, the
latter situation will, for reasons of convenience, be described as the legal status
of neutral straits. 1
Straits are comparatively narrow natural passageways between one part of
the high seas or an exclusive economic zone and another part of the high seas,
or exclusive economic zone. 2 Artificial passageways must be distinguished from
straits. In particular, they are not governed by the international law applicable
to straits, but rather (and if at all) by special treaty provisions. That being so, for
the purposes of the present study it is important to note the following
provisions.
• With respect to the Panama Canal, the Treaty of 7 September 1977 3
provides that "in time of peace and in time of war it shall remain secure and
open to peaceful transit by the vessels o{ all nations on terms of entire
The Law of Naval Warfare and International Straits
equality. . . . Vessels of war and auxiliary vessels of all nations shall at all times
be entitled to transit the Canal, irrespective of their internal operation, means
of propulsion, origin, destination or armament." 4
• Pursuant to the Treaty of Constantinople of 29 October 1888, 5 "the Suez
maritime canal shall always be free and open, in time of war and in time of
peace, to every vessel of commerce or war, without distinction of the flag." 6
• Pursuant to Article 380 of the Treaty of Versailles, the Kiel Canal is open
to all vessels flying the flags of States not at war with Germany. 7
The Legal Status of Belligerent International Straits
As far as international straits of the parties to an international armed
conflict are concerned, neither those not completely overlapped by territorial
sea nor straits governed by "long-standing international conventions," will be
dealt with here in depth. 8 In the case of the former, a route through the high
seas or through an exclusive economic zone will usually exist. Hence, littoral
States are not bound by the special rules and principles applicable to
international straits. 9 In the case of the latter, there is only one international
convention explicitly dealing with the situation of a littoral State being party to
an ongoing armed conflict. 1 According to Articles 1, 2, 4, and 5 of the 20 July
1936 Montreux Convention, all neutral vessels enjoy the right o( transit
passage, as long as they travel through the Bosporus and the Dardanelles by
daytime, refrain from supporting Turkey's enemies, and respect sea lanes
designated by the Turkish authorities. However, there is no provision
restricting the transit right of Turkish warships. Rather, Article 20 provides:
En temps de guerre, la Turquie etant belligerante, les dispositions des articles 10
a 18 ne seront pas applicables; le passage des batiments de guerre sera
entierement laisse a la discretion du Gouvernement turc.
Thus if Turkey is a belligerent the same rules apply as in international straits
not governed by a special treaty regime.
Suspension of the Right of Transit Passage in Time of Armed Conflict? The
territorial seas of the parties to an international armed conflict are part of the
general area of hostilities. Therefore, at first glance there seem to exist no
restrictions on the conduct of hostilities in and over international straits
completely overlapped by the territorial seas of the parties to an international
armed conflict. Indeed, subject to the applicable maritime jus in hello, enemy
vessels and aircraft in such straits may be attacked, and enemy and neutral
264
Wolff Heintschel von Heinegg
merchant vessels may be visited, stopped, and captured. 11 Of particular
note, the littoral State is entitled to deny all enemy vessels and aircraft the
right of transit passage. 12 In view of the economic interests involved, 13
however, it is a matter of dispute whether such straits may also be closed to
the shipping of States not parties to the conflict, i.e., neutral shipping. 14
In the course of the deliberations at the 1907 Second Hague Peace
Conference on Convention VIII, a proposal by the Netherlands on a
comprehensive prohibition of mining international straits was rejected. 15
Another, seeking a prohibition on the complete closing of an international
strait by mines, also failed. 16 Therefore, although a number of delegates
expressed sympathy for such proposals, Hague Convention VIII lacks any
provision on the mining of international straits. 17 During the Second World
War, numerous international straits were mined. 18 Yet during the first two
years of the war this closure was not complete. In the respective proclamations
of danger zones, either peaceful shipping was referred to or piloting services or
safe passages were designated, thus enabling peaceful shipping to transit the
straits relatively unmolested. 19 Still, in view of the total character of this war in
the years following, these examples are insufficient to prove the existence of a
prohibition on entirely closing international straits. State practice after 1945
also reveals that if States bordering an international strait are parties to an
international armed conflict, they are inclined to close it even to peaceful
shipping; they are not prepared to tolerate the dangers otherwise involved. 20
It seems, however, that a total closure of international straits, especially
by naval mines, is inconsistent with the 9 April 1949 judgement of the
International Court of Justice in the Corfu Channel case. 21 As is well
known, the Court, in view of the state of war alleged by Greece,
acknowledged Albania's right to restrict the passage of warships. It
emphasized, however, that this may not lead to "prohibiting such passage or
subjecting it to requirements of special authorization." 2 Recent state
practice also indicates the existence of a rule prohibiting the suspension of
the right of transit passage, even during an international armed conflict. At
the beginning of the first Gulf War, Iran explicitly acknowledged its legal
duty to keep open those parts of the Strait oi Hormuz 23 overlapped by its
territorial sea. 24 When Iran proclaimed a war zone in that sea area and
closed it to international shipping, the international community, because of
the overall importance of this strait for international oil trade, reacted with
vehement protests. 25 In particular, the United States maintained that the
right oi transit passage remains unaffected by the fact that the bordering
States are involved in an international armed conflict. 26
265
The Law of Naval Warfare and International Straits
These statements and protests imply that the right of transit passage through
and over international straits as laid down in Article 38 of the UN Convention
on the Law of the Sea (LOS Convention) is both customary in character and
binding upon States parties to an international armed conflict. ll Further
evidence in favor of the customary character of a comprehensive and
non-suspendable right of transit passage is Article 16, paragraph 4, of the 1958
Geneva Convention on the Territorial Sea and the Contiguous Zone. 28
According to that provision there "shall be no suspension of the innocent
passage of foreign ships through straits which are used for international
navigation between one part of the high seas and another part of the high seas or
the territorial sea of a foreign State." Moreover, it has to be kept in mind that the
right of transit passage applies especially to straits that have lost their high seas
character because of an expansion of the territorial sea to twelve nautical miles. 29
In all likelihood, without compensation in the form of the right of transit passage,
the legal status of international straits would not have been settled. 30 Finally, the
Commander's Handbook of the U.S. Navy (NWP 1-14M) provides that naval
mines may be employed "to channelize neutral shipping, but not in a manner to
deny transit passage of international straits [. . .] by such shipping." 31
On the other hand, it must be remembered that some States neither
acknowledge the customary character of Article 38 of the LOS Convention, 32
nor agree with its applicability in times of armed conflict. At the beginning of the
deliberations on the Convention, a number of delegations, while pleading for a
transit right for vessels in international straits, were hesitant to accept a right of
overflight as well. 33 In contrast to NWP 1-14M, the German Handbook, in
section 1042 on mining, provides that "the shipping lanes of neutral and
non-belligerent States shall be kept open to an appropriate extent, if military
circumstances so permit." 34 This view is obviously shared by Denmark. 35
It follows from the foregoing that State practice is conclusive only to the extent
that, in principle, neutral vessels, i.e., warships and merchant vessels, 36 may not be
denied the right of transit passage (or of non-suspendable innocent passage) in
international straits belonging to the parties to an international armed conflict. 3 '
However, there is also a tendency towards restriction of this right. 35 Unfortunately,
it is far from clear under which conditions the littoral belligerent State should be
allowed to so restrict it. Of course, one possibility is denial to neutral submarines of
the right to transit a belligerent strait submerged. 39 This restriction could be
justified by the legitimate interest oi the belligerent littoral States in being fully
informed of sea traffic in its coastal waters. The interests of the neutral flag States
would be infringed upon only insignificantly, especially in view of the technical
difficulties of identifying submerged objects. 40 Still, because of its inconclusiveness,
266
Wolff Heintschel von Heinegg
no further conclusions relating to restrictions on the neutral States' right of
transit passage can be drawn from State practice. In any event, the reasons
justifying any limitation of this right must be of considerable weight — for
example, overwhelming considerations of national security. 41 This follows from
the fact that the law of both naval warfare and maritime neutrality has to be
considered to be of an exceptional legal order. 42
The Right of Overflight The foregoing principles cannot, as such, be applied to
the right of overflight that Article 38.1 of the LOS Convention includes in
transit passage. 43 While NWP 1-14M contains a prohibition of entirely mining
international straits, no provision addresses closure of the airspace above an
international strait. 44 Of course, enemy military aircraft entering the airspace
above an international strait overlapped by the belligerent coastal State's
territorial sea may be attacked, and enemy civilian aircraft may be forced to
land and be subjected to capture. 45 In principle, neutral aircraft are entitled to
continue with their normal operations, but if they enter that airspace they do so
at their own risk. 46 Still, an unlimited application of the peacetime rules on
overflight in time of armed conflict would meet considerable practical
difficulties. Aircraft move much faster than ships. The Vincennes incident is but
one demonstration of the difficulties involved in the identification of aircraft
within a limited period o{ time. 47 In view of the potential threat posed by
aircraft, parties to an international armed conflict will hardly be willing to allow
neutral air traffic to continue using the airspace above their international
straits. Hence, there seem to be good reasons for a belligerent right to restrict or
even suspend the right of overflight by neutral air traffic in the airspace above
international straits in time of armed conflict. Indeed, in State practice there
are some indications that during an international armed conflict coastal States
reserve a right to close entirely the airspace above international straits
overlapped by their territorial seas. 48 This practice, however, is not sufficient to
prove either the nonexistence or existence of an unlimited right of overflight by
neutral aircraft in time of armed conflict. Therefore, the legality of a restriction
of transit passage by neutral aircraft can only be judged, if it can be judged at all,
ex post in light of the jus ad helium.
The Legal Status of Neutral International Straits
Neutral International Straits to Which the Right of Transit Passage Applies.
The Second Hague Peace Conference. The legal status of neutral international
straits was dealt with at the Second Hague Peace Conference, in the context of
267
The Law of Naval Warfare and International Straits
the rights and duties of neutral States in naval war. In 1894, the Institut de
Droit International had proposed a rule according to which "les detroits qui
servent de passage d'une mer libre a une autre mer libre, ne peuvent jamais etre
fermes." The Swedish delegate to the Second Hague Peace Conference
referred to that proposal in these terms: "Si le droit des neutres d'interdire
l'acces de ses eaux territoriales aux navires de guerre et aux prises est consacre
comme le porte la proposition britannique article 30, il faudrait ajouter a cette
disposition une exception du meme contenu que la resolution de l'lnstitut." 49
The Danish delegate proposed an amendment by which the provisions of
Hague Convention XIII were not to be understood "de facon a prohiber en
temps de guerre le passage simple des eaux neutres, unissant deux mers libres
par un navire de guerre ou navire auxiliaire d'un belligerant." 50 Both proposals
were aimed at denying neutral States the right to close their territorial seas if
they formed part of an international strait. The contrary view was taken by the
Ottoman and Japanese delegates, who wanted to treat international straits in
the same manner as other coastal waters. 51 In the end, the legal status of
neutral international straits remained unsettled, even though the Third
Committee in its report to the plenary had come to the conclusion that "la
formule adoptee . . . ne tranche nullement les questions precedentes, laissees
sous l'empire du droit des gens general." 52 Still, it is doubtful that by 1907 a rule
to that effect was in existence. 53 Although only Japan had explicitly rejected a
prohibition on closing neutral international straits, the lack o( willingness
amongst the other delegates to agree upon a special provision on straits cannot
be ignored. 54
State Practice. State practice during international armed conflicts before
1945 was also inconclusive with regard to the existence of a general and
comprehensive legal duty of neutral States to keep their international straits
open. 55 Only the Scandinavian States allowed belligerent merchant vessels and
warships to transit their international straits and, if they had laid mines there,
offered piloting services. 56 In addition, Denmark, Finland, Iceland, Norway,
and Sweden, in the Stockholm Declaration Regarding Similar Rules o{
Neutrality of 27 May 1938, 57 promised to keep their international straits open
to belligerent warships. 58 These examples are insufficient to prove the
existence of a customary rule. 59 On the contrary, other States, like Germany,
believed that there existed no rule of customary or treaty law obliging neutral
States to let belligerent merchant vessels freely transit neutral international
straits. 60
Relevant state practice since 1945 is also predominantly restricted to
Scandinavian States, 61 which, by acts of national legislation, have more or less
268
Wolff Heintschel von Heinegg
clearly shown their willingness to keep their international straits open for
belligerent warships, merchant vessels, and aircraft. 62 Some authors claim the
existence of a general rule of customary law to that effect. 63 Unfortunately, they
ignore the fact that such a claim must be based on a general practice
accompanied by a corresponding opinio juris. Moreover, the question of
whether the transit of belligerent warships is in accordance with the neutral
status of the littoral State has to be clearly distinguished from that of whether a
neutral State is entitled to deny transit through or over its international strait
to belligerent warships, merchant vessels, or aircraft. Therefore, despite
assertions to the contrary, one must conclude that until the end of the Third
United Nations Conference on the Law of the Sea (UNCLOS III) in 1982,
there existed no customary rule prohibiting the total closure of international
straits by neutral coastal States.
The Influence of the International Law of the Sea. So far, we have not taken
into consideration the progressive development of the international law on
international straits initiated by the codifications o( the law of the sea,
especially by the LOS Convention. As already mentioned, Article 16.4 of the
1958 Geneva Convention on the Territorial Sea and the Contiguous Zone
provides that there "shall be no suspension of the innocent passage of foreign
ships through straits which are used for international navigation between one
part of the high seas and another part of the high seas or the territorial sea of a
foreign State." 64 Since it was up to the coastal State to determine the
innocence of passage, the question arose of whether it was entitled to require
foreign warships to leave the strait should they fail to comply with the laws and
regulations of the coastal State. Other unresolved issues include the right of
submarines to transit straits submerged and the duty of foreign military aircraft
to obtain prior admittance from the coastal State for overflight. 65
These problems were partly solved by UNCLOS III, especially because
extension of the territorial sea to twelve nautical miles did not allow the issue of
international straits to be left unregulated. 66 Now the right of transit passage
applies in international straits that are overlapped by the territorial seas of the
littoral States. 67 According to Article 38.2 of the LOS Convention, transit
passage that "shall not be impeded" 68 is "the exercise of the freedom o(
navigation and overflight solely for the purpose of continuous and expeditious
transit of the strait." While exercising the right of transit passage, ships and
aircraft must proceed without delay; refrain from any threat or use of force
against the sovereignty, territorial integrity, or political independence of the
bordering State, or in any other manner violate the principles of international
law embodied in the United Nations Charter; and limit activities to those
269
The Law of Naval Warfare and International Straits
incident to their normal modes of continuous and expeditious transit, unless
rendered necessary by force majeure or by distress. 69 Moreover, according to
Article 39.2, ships in transit shall comply with "generally accepted
international regulations, procedures and practices" for safety at sea and for the
prevention, reduction, and control of pollution from ships. This means that
they are obliged to observe the conventions concluded under the auspices of
the International Maritime Organization (IMO). 70 Aircraft in transit passage
shall observe the Rules of the Air established by the International Civil
Aviation Organization (ICAO). 71 Finally, the littoral State is entitled to
designate sea lanes and to prescribe traffic separation schemes. 72 However,
such laws and regulations shall not discriminate in form or in fact among
foreign ships, or in their application have the practical effect of denying or
impairing the right of transit passage. 73 This implies that the right of transit
passage will remain unaffected, even if the vessel or aircraft in transit passage
violates the regulations adopted by the littoral State. 74
In view of the customary character of these provisions, we may draw the
conclusion that warships and military aircraft enjoy an unimpeded right of
transit passage. 75 Submarines, because of the reference to "normal modes" in
Article 39.1(c), may transit international straits submerged. 76 The littoral
States' duty not to infringe upon this right is incumbent on them not only in
time of peace but also during an international armed conflict at sea if they are
not parties. 77 If the parties to an international armed conflict may restrict or
suspend the right o( transit passage only in exceptional cases, then, a fortiori,
States not parties to the conflict must be subject to even stricter limitations.
This conclusion is verified by recent State practice. During the Iran-Iraq
conflict, transit through or over the Strait of Hormuz by the Iranian and the
Iraqi armed forces was in no way restricted by Oman. The military manuals of
the U.S. Navy, 78 Canada, 79 and the Federal Republic of Germany 80 also provide
that neutral States are not entitled to restrict or suspend the transit of
belligerent warships and military aircraft, or to submit them to stricter
regulations than those applicable to vessels and aircraft of other States. 81
Moreover, the continuing validity of the right oi transit passage is an
appropriate means to meet the object and purpose of the law of neutrality. 82
Hence, Rauch correctly states:
One of the advantages of the new transit passage concept is that it keeps the
littoral States bordering straits with great strategic value out of the vicious circle
of escalation in times of tension and crisis. If transit through such straits were
subject to the discretion of the coastal States, they would unavoidably become
involved, even if the discretionary power were to be exercised evenhandedly, i.e.,
270
Wolff Heintschel von Heinegg
even if they meticulously abided by the rule that all restrictions or prohibitions
have to be applied impartially to the belligerents. The ramifications of a refusal or
of a permission of transit in whole or in part — e.g., only surface navigation, or
surface and submerged navigation, or navigation and overflight — could, albeit
legally non-discriminatory, in fact be of quite different military and strategic
value to the parties to the conflict. 83
As in time of peace, however, belligerent warships in transit must properly
respect designated sea lanes and traffic separation schemes and must proceed
without delay. 84 They may not carry out any research or survey activities
without the prior authorization of the bordering States. 85 The prohibition on
the threat or use of force against the littoral State is complemented by the
relevant prohibitions of the law of maritime neutrality as laid down in the 1907
Hague Convention XIII and as found in customary law. 86 In particular,
belligerent warships and military aircraft may neither take hostile actions nor
use these sea areas as a base of operations. 87 Military aircraft must respect safety
regulations and have due regard for the safety of air traffic. 88 In view of their
sovereign immunity, belligerent warships are not bound by the provisions of the
LOS Convention on the protection of the marine environment.
While submarines may pass through neutral international straits submerged,
it is not quite clear which additional measures belligerent warships and military
aircraft in transit may take. 89 According to the Canadian Draft Manual, they
may transit a neutral strait "in an appropriate state of readiness with
appropriate sensors activated." 90 NWP 1-14M provides that "belligerent forces
in transit may, however, take defensive measures consistent with their security,
including the launching and recovery of aircraft, screen formation steaming,
and acoustic and electronic surveillance." 91 Military aircraft may "engage in
activities that are consistent with their security and the security of
accompanying surface and subsurface forces." 92 The same rules can be found in
the San Remo Manual 93 The use of acoustic and electronic sensors must be
considered a normal activity of warships and military aircraft, especially during
armed conflict, an activity that is not to be equated with "research and survey
activities" in the sense of Article 40 of the LOS Convention. Otherwise, their
security would be intolerably jeopardized. 94
There remain some doubts as to whether the other measures mentioned in
section 7.3.5 of NWP 1-14M are compatible with the duty of continuous and
expeditious transit. 95 Since there is no relevant State practice that would allow
conclusions regarding the current state of the law, one cannot but consider
such activities as in accordance with the applicable law if they do not:
(1) endanger the safety of navigation within the strait; (2) present a threat or
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use of force against the sovereignty, territorial integrity, or political
independence of the neutral littoral State in a way incompatible with the laws
of neutrality; or (3) unreasonably exceed what is necessary for a continuous
and expeditious transit. 96 As regards the use of military aircraft, this may not
result in a use of neutral waters or airspace as a base of operations. Thus,
attacks may not be conducted by military aircraft launched from warships
within neutral international straits. 97 Within and over neutral territorial seas,
all hostile actions by belligerent forces are prohibited. The fact that parts of a
neutral's territorial sea form an international strait does not alter anything. The
right of transit passage implies only that the neutral littoral State is prohibited
from closing an international strait to belligerent warships and military aircraft;
it does not mean that the coastal State's sovereignty is no longer protected.
It needs to be emphasized that the foregoing principles only apply to
offensive operations. As seen, according to NWP 1-14M and the San Re mo
Manual "defensive measures consistent with their security" would not be
contrary to the inviolability of the neutral State's sovereignty. During the
discussions on the San Remo Manual there "seemed to be general agreement
that because of the dangers of unlawful attack on a transiting unit by an
opposing belligerent which might ignore its duty to respect the neutrality of the
State bordering the strait, . . . the transiting unit should be allowed to go
through in a high state of readiness and should be able to adopt the defensive
measures necessary for the self-defence of the unit or force." 98
Unfortunately, the participants were unable to be more concrete about this
issue. There is, however, another rule in the San Remo Manual that is of help
in evaluating the legality of defensive measures taken in neutral waters,
including neutral international straits. Paragraph 22 provides:
Should a belligerent State be in violation of the regime of neutral waters . . . the
neutral State is under an obligation to take the measures necessary to terminate
the violation. If the neutral State fails to terminate the violation of its neutral
waters by a belligerent, the opposing belligerent must so notify the neutral State
and give the neutral State a reasonable time to terminate the violation by the
belligerent. If the violation of the neutrality of the State by the belligerent
constitutes a serious and immediate threat to the security of the opposing
belligerent and the violation is not terminated, then that belligerent may, in the
absence of any feasible and timely alternative, use such force as is strictly
necessary to respond to the threat posed by the violation.
Accordingly, belligerent warships and military aircraft transiting a neutral
international strait are allowed to take all measures necessary for self-defense
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as acknowledged by customary international law if the neutral littoral State is
either unwilling or unable to terminate the violation of its neutrality. Thus, the
sovereignty of the neutral State and the belligerents' interests are equally met.
Neutral International Straits to Which the Right of Transit Passage Does Not
Apply. The rules and principles dealt with so far undoubtedly apply to
international straits overlapped by the territorial seas of neutral coastal States.
However, according to the LOS Convention the right of transit passage is not
valid in all straits which — either in general or in specific maritime
parlance — are used for international navigation. The exceptions have
repercussions for the law of maritime neutrality, because they concern sea areas
covered by the territorial sovereignty of the neutral coastal State.
Exceptions to the Right of Transit Passage According to the LOS Convention.
Straits used for international navigation between a part of the high seas or an
exclusive economic zone and the territorial sea or historical bay of a foreign
State are governed only by the right of innocent passage. 100 Although
according to Article 45.2 of the LOS Convention there "shall be no suspension
of innocent passage through such straits," the coastal State will be in a position
to impose stricter limitations on international navigation than if the transit
passage regime applied. The decisive differences are that foreign submarines
may not transit such straits submerged and that foreign aircraft are prohibited
from entering the airspace above them, unless the coastal State explicitly
consents.
Another explicit exception to the transit passage regime is laid down in
Article 36 of the LOS Convention; it applies "if there exists through the strait a
route through the high seas or through an exclusive economic zone of similar
convenience with respect to navigational and hydrographical characteristics."
If an international strait is not — at least in part — completely overlapped by the
territorial sea of the coastal States, ships and aircraft of all nations enjoy
freedom of navigation and overflight in the remaining corridor even if an
exclusive economic zone has been proclaimed. Such a situation is encountered
in all straits whose breadth exceeds twenty-four nautical miles measured from
properly drawn baselines. In straits whose breadth is less than twenty-four
nautical miles there may also exist a high seas (or EEZ) corridor if the coastal
States claim a territorial sea of less than twelve nautical miles. 101 Within those
portions of the strait that are part of the coastal State's territorial sea, ships and
aircraft only enjoy a suspendable right of innocent passage. 102
At first glance, the provisions of Article 36 seem rather clear. However,
their practical application sometimes poses difficult problems. It needs to be
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The Law of Naval Warfare and International Straits
emphasized that the existence of a high seas or EEZ corridor as such does not
exclude the applicability of the transit passage regime. The route must be "of
similar convenience with respect to navigational and hydrographical
characteristics." If the remaining corridor does not meet these qualifications,
the transit passage regime will also apply in straits not overlapped by the
territorial sea of the bordering State. 103 But when is the corridor u oi similar
convenience"? In view of the wording of Article 36, this will not be the case if
the navigational channel is not identical with the remaining corridor or when
transiting through the corridor would result in navigational difficulties or a loss
of time. 104
The latter aspect is also of importance with regard to overflight. If the
corridor, due to the geographic configuration of the bordering coastlines, often
changes its direction, military aircraft in particular will hardly be able to follow
it exactly. This problem is not resolved by demanding that pilots decelerate,
because, should they do so, their aircraft would be more vulnerable to surface
to air missiles. Hence, the coastal State will have to tolerate flights over those
parts of the strait overlapped by its territorial sea. 105
Of course, some will counter these arguments by denying a neutral State's
duty to have regard for belligerent military considerations. The neutral coastal
State is, they would argue, obliged to tolerate transit through and over its
territorial sea only if necessary for the safety of international air and sea traffic.
If a belligerent is not prepared to assume the risks resulting, e.g., from slow
flight, it must simply refrain from using the neutral airspace. The
counterarguments have some validity in time of peace. Although the
relationship between belligerents and neutrals is to a considerable extent
governed by the law of peace, the modification thereof by the laws of neutrality
may not be ignored. The object and purpose of the law of neutrality is to protect
the neutral against the effects of hostilities and to prevent it from becoming
(directly) involved in the armed conflict. The parties to the conflict will
scarcely be willing to limit their operations to corridors that are not oi "similar
convenience." The neutral State would be obliged to react, possibly by military
means, to the use of its airspace. Of course, there remains no specific rule of
maritime neutrality which would permit belligerent aircraft to overfly neutral
territorial seas in those international straits through which there are high seas
or exclusive economic zone routes of similar convenience as defined by Article
36. However, functional considerations seem to justify the conclusion that
belligerent warships and military aircraft are entitled to transit such straits in
and over the neutral coastal State's territorial sea. 106
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Wolff Heintschel von Heinegg
The third kind of strait excluded from the application of the regime of
transit passage is dealt with in Article 38.1 of the LOS Convention. This
exception, generally called the Messina Exception because it has its origin in a
corresponding endeavour by Italy, applies to a strait that "is formed by an island
of a State bordering the strait and its mainland." 107 In such a case, transit
passage shall not apply "if there exists seaward of the island a route through the
high seas or through an exclusive economic zone of similar convenience with
respect to navigational and hydrographical characteristics." 108 However,
according to Article 45 all ships enjoy the right of innocent passage in such
straits. Although States bordering a strait like that of Messina will regularly try
to exclude the right of transit passage, they will be entitled to do so only if the
conditions laid down in Article 38.1 are met. 109 For example, even in the Strait
of Messina there is no unlimited right to prevent ships and aircraft from
transiting. 110 Otherwise, ships and aircraft travelling from France to the
southern and southeastern Mediterranean would be compelled to take the
route around Sicily, which is about sixty nautical miles longer than the passage
through the Strait of Messina. It can hardly be said that that route is of "similar
convenience."
Straits Governed by hong-Standing International Conventions. Finally — and
this is a continuing cause for dispute — according to Article 35(c) of the LOS
Convention the regime of transit passage does not apply to straits "in which
passage is regulated in whole or in part by long-standing international
conventions in force specifically relating to such straits." 111 There is no
indication in the Convention as to which straits qualify for this exception. Still,
according to the view taken here, only six international straits, if any at all, are
regulated by such conventions: 112 the Turkish Straits (Bosporus and
Dardanelles), the Strait of Magellan, the Strait of Gibraltar, the Sound and the
Belts, and the Aland Islands Strait. 113
It is beyond any doubt that in the Turkish Straits the right of transit passage
does not apply, 114 for there are specific rules with regard to transit passage in the
Montreux Convention of 20 July 1936. 115 In time of peace and in time of war,
merchant vessels of all nations enjoy an unrestricted right of passage through
the Dardanelles, the Marmara Sea, and the Bosporus. 116 Article 23 limits the
right of overflight to civil aircraft. Accordingly, military aircraft may not enter
airspace above the Straits, either in time of peace or war.
Special provisions apply to warships; further, the Convention distinguishes
between warships belonging to States bordering the Turkish Straits and those
belonging to other States. 117 In principle, all warships are obliged to inform the
Turkish authorities in advance, by notification of the names, types, and
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The Law of Naval Warfare and International Straits
numbers of the ships and of the date of passage. 118 Prior to passage the
commander must also provide information about the nature of weapons aboard
his ship. No more than nine ships may transit the Straits simultaneously. The
aggregate tonnage of the ships may not exceed fifteen thousand tons unless
they belong to a State bordering the Straits. If they exceed fifteen thousand
tons, the ships may only transit alone or in the company of two cruisers (or
destroyers). The total tonnage of warships in the Black Sea belonging to States
not bordering that sea may amount to thirty thousand tons (or, in the event of
significant disparity between fleets, a maximum of forty-five thousand tons).
All warships transiting the Straits are prohibited from launching their aircraft.
Submarines may not transit, unless they belong to bordering States and
originate from areas beyond the Black Sea. Such submarines may only transit
alone, during the day, and on the surface. Laid down in Articles 10 through 18,
these provisions on warships apply both in time of peace and, if Turkey is not a
belligerent, in time of war. 119 Warships belonging to the parties to an
international armed conflict are strictly prohibited from transiting the Turkish
Straits. 120
While the Turkish Straits do indeed match the conditions laid down in
Article 35(c) of the LOS Convention, the other straits mentioned do not;
however, they clearly qualify as being governed by "long-standing international
conventions" in the sense of that provision. Freedom of navigation in the Strait
of Magellan is dealt with in the Boundary Treaty between Argentina and Chile
of 23 July 1881. 121 That treaty was concluded due to an arbitral award by
Edward VII. According to Article V, the Strait of Magellan is permanently
neutralized, and ships of all nations enjoy an unrestricted right of freedom of
navigation. In Article 10 of the Treaty of Peace and Amity of 18 October 1984,
Argentina and Chile, explicitly referring to the treaty of 1881, agreed in as
follows: 122
The delimitation herein agreed in no way alters what is laid down in the
Boundary Treaty of 1881, whereby the Strait of Magellan is neutralized in
perpetuity and unrestricted navigation in it is assured for the flags of all
nations. . . .
Since there is no provision in these treaties specifically regulating "passage,"
some argue that Article 35(c) is not applicable and that therefore the Magellan
Strait is governed by the right of transit passage. 123 However, the missing
reference to "passage" should not be overestimated. Rather, "navigation" is to
be understood as comprising passage. 124 This is one of the reasons why, for
example, the United States acknowledges that the Strait of Magellan falls
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Wolff Heintschel von Heinegg
under the 35(c) exception. 125 Thus, according the Treaty of 1881 (not Article
38 of the LOS Convention), warships and merchant vessels of all nations enjoy
an unlimited right of passage through the Strait of Magellan at all times.
Since there is no reference to aircraft in either the 1881 or 1984 treaties, it is
a matter of contention whether aircraft of all nations also enjoy the right of
non-suspendable overflight. Although Argentina and Chile are seemingly
unwilling to accept such a right, in light o( long-standing practice a rule of
customary law to that effect has evolved. 126 Therefore, it may be concluded
that although the regime of transit passage as such does not apply to the Strait
of Magellan, ships (according to the Treaty of 1881) and aircraft (according to
customary law) oi all nations enjoy the right of non-suspendable passage and
overflight.
As regards the Strait of Gibraltar, the passage oi ships is subject to
agreements between France, Spain, and the United Kingdom of 1904, 1907,
and 1912. 127 There is, however, no indication in those treaties that the parties
also intended either to guarantee or exclude passage by ships of third States. 128
When they were concluded, the high seas, including the high seas corridor
between Gibraltar and North Africa, could not be made subject to bilateral or
multilateral international treaties. Nevertheless, Spain has repeatedly
maintained that the Strait of Gibraltar is regulated by the Declaration of 1904
and is therefore exempted from at least the right of overflight. 129 It is interesting
to note that during the Yom Kippur War (1973), U.S. military aircraft on
flights from the Azores to Israel scrupulously kept to the airspace above the
high seas corridor between the former three-nautical-mile territorial seas oi
Spain and Morocco. 130 In 1973, however, the regime of transit passage was still
unknown. Four years after the adoption of the LOS Convention, U.S. military
aircraft launched from Britain to attack targets in Libya flew over the Strait of
Gibraltar. The United States justified the overflight based on the Convention's
right of transit passage. 131 Hence, neither the treaties referred to nor State
practice allows the conclusion that the Strait of Gibraltar is a strait within the
meaning of Article 35(c). 132 So far, only Spain has taken a view to the contrary.
Since it did not protest the 1986 overflight by U.S. military aircraft, the Spanish
position has no influence on the legal characterization of the Strait of
Gibraltar.
With respect to passage through the Baltic Straits (Sound, Great and Little
Belt), it may be doubted here too whether it is regulated by "long-standing
international conventions." Denmark has repeatedly referred to the Treaty on
the Redemption of Sound Dues of 14 March 1857 133 and to the U.S. -Danish
Treaty of 1 April 1857 134 to maintain that those straits are not governed by
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The Law of Naval Warfare and International Straits
Article 34 ff. of the LOS Convention. 135 Accordingly, by the Ordinance of 27
February 1976 Denmark has subjected transit by warships and overflight by
military aircraft to prior notice and prior admittance respectively. While in
principle all States observe these regulations, 136 they have emphasized that the
1857 treaties were never applied to warships. 137 Rauch takes the position that
passage in the Baltic Straits is not regulated, either in whole or in part, by the
treaty of 14 March 1857. He therefore maintains that the straits are governed
by the right of transit passage in accordance with Part III of the LOS
Convention. 138 Indeed, the Treaty on the Redemption of Sound Dues contains
only an indirect reference to the customary freedom oi navigation. On the
other hand, in the U.S. -Danish Treaty of 1 April 1857 "the free and
unencumbered navigation of American vessels, through the Sound and the
Belts forever" is guaranteed. Ultimately, there is little need for a final solution
to this problem, since such a solution would not clarify a situation in which
Denmark was neutral. Even if one were prepared to characterize the Danish
Straits as regulated by "long-standing conventions," doing so would not
necessarily imply that a neutral Denmark would be entitled to close them to
belligerent warships and military aircraft. Instead, the practice of Scandinavian
States already referred to above justifies the assumption that Denmark will
keep its straits open in the event of neutrality. 139 As regards Sweden and transit
through the 0resund, that assumption is strengthened by the Swedish
Ordinance of 17 June 1982, which expressly excludes warships and military
aircraft from the right of transit passage restrictions. 140 This means that
Sweden, although considering the 0resund a historical strait, 141 acknowledges
the continuing validity of the right of passage and overflight by belligerent
warships and military aircraft in naval armed conflict. Hence, the Danish
restrictions on passage and overflight do not apply when the bordering States
are neutrals.
Finally, Sweden 142 and Finland 143 maintain that the Aland Islands Strait, in
light of the 3 March 1918 Treaty of Brest-Litovsk and the 20 October 1921
Treaty Concerning the Non-Fortification and Neutralization o{ the Aland
Islands, is excluded from the regime of transit passage laid down in Part III of
the LOS Convention. Indeed, according to Article 5 of the 1921 treaty the
right oi passage is not restricted but is, instead, subject to the rules of
international law and to international practice. The question, therefore, is
whether a specific regulation of passage exists. In that regard, Rauch takes the
following position:
Unless one is to throw overboard all rules of treaty interpretation as codified in
the Vienna Convention on the Law of Treaties, however, it is impossible to
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Wolff Heintschel von Heinegg
construe Art. 5 of the Aland Convention as a treaty provision "regulating"
passage through that strait. 144
Obviously, Rauch is in favor of a very narrow understanding of the notion
"regulated" in Article 35(c) of the LOS Convention, since he is prepared to
accept only explicit restrictions or prohibitions. This notion, however, need not
necessarily be understood so restrictively. It may well suffice that the provisions
in question deal with passage at all. Hence, there are good reasons to maintain
that passage through the Aland Straits is free only to the extent commonly
understood in 1921. Thus, ships of all nations enjoy the right of passage, whereas
aircraft are not entitled to overflight. Still, the Aland Straits may not be
completely excluded from the regime of transit passage. In the treaty of 1921 the
breadth of the territorial sea is fixed at three nautical miles. Since that treaty is
still in force and has not been modified, a right of transit passage at least exists in
the sea areas beyond the three -nautical-mile territorial seas.
Conclusion
Practice with regard to international straits has shown that States bordering
an international strait have continuously endeavored to assimilate the sea
areas concerned into their territorial sea or even internal waters. The majority
of these endeavors are inconsistent with the legal regime of international straits
as it has been developed by State practice and especially by the United Nations
Convention on the Law of the Sea. In and over international straits a right of
transit passage exists that shall not be impeded, whether in time of peace or
armed conflict. 0( course, a belligerent is not obliged to leave unmolested
enemy vessels and aircraft transiting a strait overlapped by its territorial sea.
Neutral shipping and neutral aircraft, however, continue to enjoy the right of
transit passage. Neutral States bordering an international strait may prescribe
and enforce only regulations that are in conformity with the respective
provisions of Part III of the LOS Convention. Moreover, they are obliged to
counter any abuse of the neutral status of the respective waters by any of the
belligerents. They may, however, neither suspend nor in any other manner
impede the right of transit passage, even though observing the principle o(
impartiality.
0( course, the law of maritime neutrality is far from settled. However, as
regards the legal status of neutral international straits, it is here maintained
that there exists a consensus adequately balancing the interests involved:
neutral States are protected from the adverse effects of the hostilities, and
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The Law of Naval Warfare and International Straits
belligerents continue to enjoy the degree oi mobility that is essential for the
success of their naval operations. In order to preserve that compromise it is
necessary to counter any effort aimed at a further restriction of the freedom of
navigation and overflight in and over international straits. Since international
straits are highly important traffic ways, every interested State should, starting
in time of peace, take all feasible measures in accordance with international
law to prevent any infringement of the legal regime of those sea areas. It may be
emphasized that to secure effectively the international legal status oi
international straits it is in no way sufficient merely to rely upon one "lead
nation." Rather, all States concerned must, individually and collectively, take
the steps necessary.
Notes
1. Presently, the law of maritime neutrality is under scrutiny by a committee of the
International Law Association. However, the discussions have revealed that there only is a fairly
narrow basis for consensus.
2. See the definition in United Nations Convention on the Law of the Sea, Dec. 10, 1982,
art. 37, U.N. Doc. A/CON F.62/1 22, reprinted in 21 I.L.M. 1261 {hereinafter LOS Convention].
See also Convention on the Territorial Sea and the Contiguous Zone, Apr. 19, 1958, art. 16(4),
15 U.S.T. 1606, 516 U.N.T.S. 205. In the Corfu Channel Case, the International Court of
Justice characterized the respective sea area as an international strait because of "its geographical
situation as connecting two parts of the high seas and the fact of its being used for international
navigation." 1949 I.C.J. Rep. 4, 23.
3. 33 U.S.T. l.T.I.A.S.No. 10,029, reprinted in 16 I.L.M. 1082 (1977).
4- For an older effort to suspend the right of passage through the Panama Canal by way of
an extensive interpretation of "defence," see Padelford, Neutrality, Belligerency, and the Panama
Canal, 35 AM. J. INPLL55 (1941).
5. Reprinted in 3 AM. J. INTL L. (Supp.) 123 (1909).
6. For a general overview, see Roussos, Le principe de la liberte de passage du Canal de Suez et
Vapplication des regies du droit de la guerre maritime, 1 REVUE DE DROIT INTERNATIONAL POUR LE
MOYEN-ORIENT 151 (1951/52). On the illegality of Egyptian interference with Israeli and
neutral shipping, see UN Security Council Resolution 95 of 1 September 1951, U.N. Doc.
S/2298/Rev. 1, and Gross, Passage through the Suez Canal of Israel -Bound Cargo and Israeli Ships,
51 AM. J. INT'LL. 530 (1957).
7. Note that on 14 November 1936 the German government had denounced arts. 380 ff.
Hence, according to a widely held view the Kiel Canal is no longer governed by the relevant
provisions of the Treaty of Versailles.
8. LOS Convention, supra note 2, art. 35(c).
9. Accordingly, the U.S. Navy's Commander's Handbook on the Law of Naval Operations
provides:
Ships and aircraft transiting through or above straits used for international navigation
which are not completely overlapped by territorial seas and through which there is a high
seas or exclusive economic zone corridor suitable for such navigation, enjoy the high seas
freedoms of navigation and overflight while operating in and over such a corridor.
280
Wolff Heintschel von Heinegg
Accordingly, so long as they remain beyond the territorial sea, all ships and aircraft of all
nations have the unencumbered right to navigate through and over such waters subject
only to due regard for the right of others to do so as well.
U.S. Navy, The Commander's Handbook on the Law of Naval Operations (NWP
M4M), § 2.3.3.2 (1995) thereinafter NWP 1-14M].
10. The legal regime of straits in which passage is regulated in whole or in part by
long-standing international conventions specifically relating to such straits will be dealt with in
the context of neutral straits.
11. Rauch, The Protocol Additional to the Geneva Conventions for the
Protection of Victims of International Armed Conflicts and the United
Nations Convention on the Law of the Sea: Repercussions on the Law of Naval
WARFARE 44 (1984); Ronzitti, The Crisis of the Traditional Law Regulating International Armed
Conflicts at Sea and the Need for Its Revision, in THE LAW OF NAVAL WARFARE 20 (Ronzitti ed.,
1988); DONNER, DIE NEUTRALE HANDELSSCHIFFAHRT IN BEGRENZTEN MILITARISCHEN
KONFLIKT 143 (1993) ; Baxter, Passage of Ships through International Waterways in Time of War, 3 1
BRIT. Y.B. iNTL L. 189, 202 (1954); Bothe, Neutrality in Naval Warfare, in HUMANITARIAN
Law of Armed Conflict: Challenges Ahead— Essays in Honour of Fritz
KALSHOVEN 403 (Delissen & Tanja eds., 1991); MUNCH, DIE REGIME INTERNATIONALER
MEERENGEN VORDEM HINTERGRUND DERDRITTEN UN-SEERECHTSKONFERENZ44 (1982). For
a contrary view de lege ferenda, see Harlow, UNCLOS III and Conflict Management in Straits, 15
Ocean Dev. & Intl L.J. 197, 206 (1985).
12. In 1 95 1 , during the Israeli- Arab conflict, Egypt prohibited passage through the Strait of
Tiran by all enemy warships. Enemy merchant vessels were subject to capture. On 23 May 1967
President Gamal Abdel Nasser declared the Strait of Tiran closed to all Israeli shipping: "The
Aqaba Gulf constitutes our Egyptian territorial waters. Under no circumstances will we allow the
Israeli flag to pass through the Aqaba Gulf." 6 I.L.M. 516 (1967). See also Gross, Passage through
the Strait of Tiran and in the Gulf of Aqaba, 3 LAW & CONTEMP. PROBS. 125 (1968) ; Hammand,
The Right of Passage in the Gulf of Aqaba, 15 REVUE EGYPT. DE DROIT INTERNATIONAL (1959).
During the Iran- Iraq conflict, those parts of the Strait of Hormuz overlapped by the Iranian
territorial sea were closed to Iraqi shipping. See Amin, The Iran-Iraq War: Legal Implications, 6
MARINE POL'Y 193, 209 (1982).
13. For the importance attached to the freedom of navigation in international straits, see
U.N. Dept of Disarmament Affairs, The Naval Arms Race 49, 68 ff. (1986);
Alexander, International Straits, in THE LAW OF NAVAL OPERATIONS, 91, 101 ff. (Robertson
ed., 1991).
14. For an older, detailed analysis, see Baxter, 31 BRIT. Y.B. INTL L. 202 ff. (1954). As
already mentioned, this question does not arise with respect to international straits not governed
by the right of transit passage, i.e., straits "in which passage is regulated in whole or in part by
long-standing international conventions in force specifically relating to such straits" ILOS
Convention, supra note 2, art. 35(c) ], "if there exists through the strait a route through the high
seas or through an exclusive economic zone of similar convenience with respect to navigational
and hydrographical characteristics" (Id., art. 36), or "if the strait is formed by an island of a State
bordering the strait and its mainland . . . and if there exists seaward of the island a route through
the high seas or through an exclusive economic zone of similar convenience with respect to
navigational and hydrographical characteristics" 1 (Id., art. 38.1) J. According to Article 45 of the
LOS Convention, in international straits in the sense of Article 38.1, a non-suspendable right of
innocent passage exists; in straits in the sense of Article 36, a suspendable right of innocent
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The Law of Naval Warfare and International Straits
passage exists. (Id., art. 45). See also ROBERTSON, THE "NEW" LAW OF THE SEA, 38 ff. (Newport
Paper #3, Naval War College, 1992); RAUCH, supra note 11, at 38 ff.
15. Article 4 of the Netherlands proposal reads, "En tout cas les detroits, qui unissent deux
mers libres ne peuvent pas etre barrel." Reprinted in NlEMEYER, URKUNDENBUCH ZUM
SEEKRIEGSRECHT 47 (1913). For the English translation, see III THE PROCEEDINGS OF THE
Hague Peace Conferences: The Conference of 1907, at 663 (Scott ed., 1921). See also
the references in LEVIE, MINE WARFARE AT SEA 42 ff. (1992).
16. See Article 6 (Reserve) of the Texte d'un Projet de Reglement arrete sur la base des
Deliberations du Comite d'Examen: "La communication entre deux mers libres ne oeut etre barree
entierement par des mines automatiques de contact. Mais le passage pourra y etre soumis
a conditions qui seront d£cr£t£es par les autoritis comp£tentes." Reprinted in NlEMEYER, supra
note 15, at 744; see also Scott, supra note 15, at 674.
17. In its report to the plenary, the Third Committee declared:
Enfin la Commission, sur la proposition de la Delegation n£erlandaise eut encore
a s'occuper de la forme qui serait donnee a la decision du Comite, approuv£e par la
Commission en principe, et d'apres laquelle, par les stipulations de la Convention
a conclure rien n'etait change, en quoique ce fQt, a la situation actuelle des detroits. La
Delegation n6erlandaise dessirait qu'une disposition comportant ce texte fQt ins£r£e dans
le Reglement concernant la pose des mines. Apres discussion, il fut jug£ preferable de ne
rien ajouter au texte du Reglement, mais de modifier le passage du Rapport qui parle de la
resolution prise sur cette question par le Comite" d'Examen; on etablirait dans le Rapport
que les detroits sont rested en dehors les deliberations de la pr£sente Conference et, tout
en r£servant express£ment les declarations faites au sein du Comite par les Delegations
des Etats-Unis d'Amerique, du Japon, de la Russie et de la Turquie, on indiquerait la
conviction de voir appliquer sur les mines dont on pourrait se servir dans les detroits les
conditions techniques adoptees par le present Reglement.
Reprinted in NlEMEYER, supra note 15, at 757, and SCOTT, supra note 15, at 654. See also Levie,
Commentary on the I 907 Hague Convention VIII, in THE LAW OF NAVAL WARFARE, supra note
1 1 , at 140, 145 ff., who rightly states that "there is no indication as to what the then existing law
was actually considered to be with respect to such mining."
18. For the practice during the First World War, see Levie, MINE WARFARE, supra note 15,
at 65, 77 ff.
19. See, inter alia, the announcements of the German government on 9 April 1940
concerning the Skagerrak between Lindesnes, Lodbjerg, and FlekkerOy, Sandnas Hage
(reprinted in OBERKOMMANDO DER KRIEGSMARINE, URKUNDEN ZUM SEEKRIEGSRECHT
[Sept. 1, 1939 bis Aug. 31, 1940], no. 340 [Berlin 1941]) [hereinafter OKM, URKUNDEN ZUM
SEEKRIEGSRECHT]; on 3 September 1939 concerning the southern entry of the Sound and the
Great Belt {id., no. 345) ; of 5 and 17 September 1939 concerning the Great F3elt (id., nos. 346 &
348); of 29 April concerning the Kattegat (id., no. 354). The United Kingdom provided free
passages in the Strait of Dover and in the Firth of Forth. See the statement by the Danish
Ministry of Commerce of 3 September 1939. (Id., no. 361).
20. For example, Swedish Ordinance no. 366 of3 June 1966 (UNST/LEG/SER.B/15, 259),
as amended on 1 7 June 1982 (Ordinance concerning Intervention by Swedish Defence Forces in
the Event of Violations of Swedish Territory in Peacetime and in Neutrality, Swedish Code of
Statutes 1982:756), regulating the rights of foreign warships and military aircraft, is explicitly
restricted to situations in which Sweden is not a party to the conflict. There remains therefore
the possibility that Sweden will close its straits to enemy as well as neutral shipping.
21. 1949 I.C.J. 4.
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Wolff Heintschel von Heinegg
22. Id. at 29.
23. For the characteristics of the Strait of Hormuz and its importance for international oil
trade, see Milan, Innocent Passage through the Strait of Hormuz, 1982 REVUE HELLENIQUE DE
DROIT INTERNATIONAL 247, 247 f.
24. In its statement of 1 October 1980, Iran declared that "in view of its international
obligations, . . . Iran shall not hesitate in any effort to keep this waterway in full operation." See
Rousseau, Chromque, 85 R.G.D.I.P. 174 (1981); Amin, 6 MARINE POLT 209 ff. (1982). In his
letter to the Security Council, the Iranian foreign minister stated: "As certain rumours have been
spread concerning the Straits of Hormuz, which might disturb international navigation in that
areas, the Ministry of Foreign Affairs of the Islamic Republic of Iran reaffirms that Iran is
committed to keeping the Straits open to navigation and will not spare any effort for the purpose
of achieving this end." U.N. Doc. S/14226 (Oct. 22, 1980).
25. See the notes of protest by the United States, France, and the Netherlands printed in 85
DEPT. OF STATE BULL., May 1985, 9 & 46; 86 id. 71 (Aug. 1986) ; 87 id. 52 (April 1987) ; 87 id.
10 Qune 1987), 87 id. 59, 66 Quly 1987); 27 A.F.D.I. 895 (1981); 33 id. 849 (1987); 13 NETH.
Y.B.INPLL. 259(1982).
26. Apart from the references in note 25, see the reply by the Secretary of State to Iranian
protests against measures taken by the U.S. Navy in the Persian Gulf. In its essential part it reads
as follows:
The procedures adopted by the United States are well established and fully recognized in
international practice on and over international waters and straits such as the Persian
Gulf, Strait of Hormuz, and the Gulf of Oman. The United States has made clear they will
be implemented in a manner that does not impede valid exercises of the freedom of
navigation and overflight and of the right of transit passage.
Reprinted in 78 AM. J. INTL L. 885 (1984).
27. In Article 38(2) of the LOS Convention, transit passage is defined as "the exercise in
accordance with this Part of the freedom of navigation and overflight solely for the purpose of
continuous and expeditious transit of the strait between one part of the high seas or an exclusive
economic zone and another part of the high seas or an exclusive economic zone." LOS
Convention, supra note 2, art. 38.2. For an analysis of the provisions on straits, see Moore, The
Regime of Straits and the Third United Nations Conference on the La<w of the Sea, 74 AM. J. INTL L.
77 (1980).
28. In his speech of 5 February 1987, the British Foreign secretary stated, inter alia, that
it has been recognized in State practice, international negotiations and the case law of the
International Court that a special regime for navigation is appropriate in straits. . . .
International law and practice have now developed to the point where, if the United
Kingdom extends to 12 miles, we should afford to others the essential rights in some
internationally important straits for which there is no alternative route, namely, the
Straits of Dover, the North Channel lying between Scotland and Northern Ireland and
the passage between Shetland and Orkney. These rights, which are widely recognised as
necessary, include: a right of unimpeded passage through such straits for merchant vessels
and warships; a right of overflight; the right of submarines to pass through the straits
submerged; and appropriate safeguards for the security and other interests of the coastal
State.
Hansard, H.L., Feb. 5, 1987, col. 382, reprinted in LAW OF THE SEA BULLETIN, No. 10, Nov.
1987, at 11.
In their common statement of 2 November 1988, the French and U.K. Governments
acknowledged as generally accepted "the existence of a specific regime of navigation in straits,"
283
The Law of Naval Warfare and International Straits
especially "rights of unimpeded transit passage for merchant vessels, state vessels and, in
particular, warships following their normal mode of navigation, as well as the right of overflight
for aircraft, in the Strait of Dover." Reprinted in LAW OF THE SEA BULLETIN, No. 14, Dec. 1989,
at 14- See also ALEXANDER, supra note 13, at 98 ff; Robertson, Passage of Ships through
International Straits: A Right Preserved in the Third United Nations Conference on the Law of the Sea,
20VA.J. INT'LL. (1980).
29. Due to that expansion, in 1 16 cases sea areas formerly belonging to the high seas now
have to be considered international straits in the sense of Article 37 of the LOS Convention.
Note, however, that figures to be found in the literature differ considerably; they range from 130
to "over 116." See 1 O'CONNELL, THE INTERNATIONAL LAW OF THE SEA 31 ff. (Shearer ed.,
1982) ;Koh, Straits in International Navigation (1982); Reisman, The Regime of St raits
and National Security: An Appraisal of International Law Making, 74 AM. J. INTL L. 48, 59 (1980) .
30. For example, the German delegate stated, "A prerequisite for the recognition of the
coastal State's right to extend the territorial sea is the regime of transit passage through straits
used for international navigation." U.N. Conf. on the Law of the Sea, XIV Off. Rec. 157, 158.
31. NWP M4M, supra note 9, § 9.2.3, para. 6.
32. For example, Iran has taken the position that the transit regime is not customary in
character. U.N. Doc. S/20525, March 15, 1989. When signing the LOS Convention, Iran
declared that it is binding upon States parties only. This declaration is printed in U.N. OFFICE OF
the Special Representative of the Secretary-General for the Law of the Sea,
Status of the United Nations Convention on the Law of the Sea 18 (1985).
33. Especially by Spain (LOS Convention, II Off. Rec. 136 ff; XIV id. at 149 (i; XVI id. at
243 ff.); Denmark (II, id. at 124); Algeria (id. at 137 ff.); Albania {id. at 139); Kuwait (id.); and
the former People's Republic of Yemen {id. at 142).
34. Federal Ministry of Defense, Federal Republic of Germany, Humanitarian
Law in Armed Conflict— Manual (1992) [hereinafter ZDv 15/2].
35. In a background paper on naval mining of January 1978 (Forudsaetninger for dansk
sominekrigsforelse, S. Ill 5), the authors come to the following conclusion: "Relative to third
parties, such minefields may be justified under the principles of international law relating to
self-defence."
36. The distinction sometimes found in the literature between neutral warships and
merchant vessels is made without any justification and can, therefore, be ignored. See Ronzitti,
Crisis, supra note 1 1 , at 20 (i
37. See NWP L14M, supra note 9, § 9.2.3; Hoog, Mines, in 3 ENCYCLOPEDIA OF PUBLIC
INTERNATIONAL LAW 283, 284 (Bernhardt ed., 1982) [Encyclopedia hereinafter E.P.I.L.].
38. For a view to that effect, see Bothe, Neutrality in Naval Warfare, supra note 1 1, at 403;
Ronzitti, Passage through International Straits in Time of International Armed Conflict, in 2
International Law at the Time of its Codification: Essays in Honour of Roberto
Ago 363, 377 (1987).
39. Note that Articles 37ff. of the LOS Convention contain no provision on submarines.
However, according to Article 39.1(c), ships and aircraft while exercising the right of transit
passage are obliged only "to refrain from any activities other than those incident to their normal
modes of continuous and expeditious transit." Hence, submarines are free to transit
international straits submerged, since that is their normal mode of operation. See Lowe, The
Commanders Handbook on the Law of Naval Operations, in THE LAW OF NAVAL OPERATIONS,
supra note 13, at 109, 122; Reisman, supra note 29, at 62 ff. (1980) ; Moore, Regime, supra note 27,
at 1 1 7 ff. (1980). For the origin of Article 39 and its strategic implications, see Clove, Submarine
Navigation in International Straits: A Legal Perspective, 39 NAVAL L. REV. 103 (1990); Burke,
284
Wolff Heintschel von Heinegg
Submerged Passage through Straits, 52 WASH. L. REV. 193 (1977) ; Grunawalt, United States Policy
on International Straits, 18 OCEAN DEV. & INTL L.J. 445 (1987).
40. For the technical aspects of anti-submarine warfare, seeJOPP, MARINE 200, at 127 fif.,
153 ff. (1989).
41. As early as 1954 Baxter came to the following conclusion: "There is some basis for
concluding that a belligerent is under an obligation to provide passage, subject to reasonable
measures of security and control such as compulsory pilotage and navigation by day, to neutral
vessels and that it may completely block passage of a strait only as a last resort in the most urgent
and compelling of circumstances." Baxter, supra note 11, at 204- Of course, this conclusion was
related to innocent passage, since transit passage was still unknown in 1954- For a contrary view,
see RAUCH, supra note 11, at 45. Rauch merely acknowledges a belligerent right to subject
neutral shipping to "reasonable measures of security and control." This conclusion is, however,
not drawn from State practice but only founded upon the judgement in the Corfu Channel case.
42. For a characterization to that effect, see Heintschel von Heinegg, The Current State of
International Prize Law, in INTERNATIONAL ECONOMIC LAW AND ARMED CONFLICT 5, 25 ff.
(Posted., 1994).
43. Note that there exists no right of overflight in straits governed by Articles 36 and 38. 1 ,
first alternative.
44. NWP M4M, supra note 9, § 9.2.3.3.
45. In this context, it suffices to mention Articles 34 and 39 of the 1923 Hague Rules on
Aerial Warfare, which can be considered customary law. See SPETZLER, LUFTKRIEG UND
MENSCHLICHKEIT 156 (1956) . For a more cautious view, see Bierzanek, Commentary on the 1 923
Hague Rules, in THE LAW OF NAVAL WARFARE, supra note 1 1, at 396, 404 ff.
46. See Canadian Armed Forces, Law of Armed Conflict Manual (Second
Draft), § 1521 (n.d.) , [hereinafter CANADIAN DRAFT MANUAL] ; Ronzitti, Crisis, supra note 1 1 ,
at 25. This does not prejudice the legal status of civilian passenger aircraft.
47. See the ICAO Report, Nov. 7, 1988, 28 I.L.M. 900 (1989); Friedman, The Vincennes
Incident, U.S. NAVAL INST. PROC, May 1989, at 74; Evans, Vincennes— A Case Study, U.S.
Naval Inst. Proc, Aug. 1993, at 49.
48. For example, the Swedish Ordinance of 1966, supra note 20.
49. Statement by the Swedish delegate during the third session of the second
subcommittee, July 27, 1907, printed in NlEMEYER, supra note 15, at 1009.
50. Reprinted in id. at 922.
51. While the Ottoman delegate referred to the Bosporus and the Dardanelles, the
Japanese delegate stated, "Le Gouvernement japonais ne prenait aucun engagement concernant
les detroits qui separent les nombreuses lies ou ilots qui composent l'empire japonais et qui ne
sont que des parties integrantes de l'empire." Id. at 893.
52. Report of Oct. 9, 1907, reprinted in id. at 893.
53. In 1927 Jessup maintained that the applicability of the right of innocent passage to
international straits "requires no supporting argument or citation." He conceded, however, that
there was no general agreement with regard to warships. See JESSUP, THE LAW OF TERRITORIAL
Waters and Maritime Jurisdiction 120 (1927).
54. The same view was taken by Wehberg, Das Seekriegsrecht, in V HANDBUCH DES
VOLKERRECHTS 418 (Stier-Somlo ed., 1915). Rauch draws a different conclusion from the
conference history: "From the opinions expressed, it seemed that a neutral State may forbid even
innocent passage through limited parts of its territorial waters so far as that was considered
necessary to maintain its neutrality, but that this prohibition could not extend to straits uniting
two open seas." RAUCH, supra note 11, at 41. Rauch also refers to the statement of the
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The Law of Naval Warfare and International Straits
Norwegian delegate concerning the right of innocent passage in time of war. However, that
statement contains nothing in relation to international straits; it is proof only for the customary
character of Article 10 of Hague Convention XIII. Ronzitti, Crisis, supra note 1 1, at 19.
55. See the references in WHITEMAN, 1 1 DIGEST OF INTERNATIONAL LAW 276 ff. (1968)
(on State practice during armed conflicts before 1945).
56. The respective announcements and proclamations are printed in
Reichs-Marine-amt, Seekriegsrecht IM WELTKRIEG (SAMMLUNG diplomatischer
NOTEN UND ANDERER URKUNDEN. ZUSAMMENGESTELLT IM AUFTRAGE DES
STAATSSEKRETARS DES REICHS- MARIN E-AMTS), 3 vols. (1916) ; and in OKM, URKUNDEN ZUM
SEEKRIEGSRECHT, supra note 19. See also, RAUCH, supra note 11, at 32 ff.
57. 188 L.N.T.S. 294-331.
58. See Articles 2.3 and 8.1 respectively for Denmark and Sweden. See also Bring,
Commentary on the 1938 Stockholm Declaration, in THE LAW OF NAVAL WARFARE, supra note
11, at 839, 891, who concludes that "the Danish and Swedish Regulations implicitly confirmed
the traditional right of unimpeded passage of foreign warships in time of war through the Baltic
Straits."
59. Note that the Harvard Draft of 1939 contains no explicit prohibition on closing neutral
international straits. There is only one reference to straits in the commentary on Article 25. That
commentary is, however, restricted to the Turkish Straits, the Suez, and the Panama Canal.
Otherwise, it is stated that the Permanent Court of International Justice (PCIJ), in the case of
the Wimbledon, ruled that the use of international waterways is in accordance with neutrality.
60. See Memorandum by the German Foreign Office of 6 June 1941, reprinted in OKM,
URKUNDEN ZUM SEEKRIEGSRECHT, supra note 19, no. 432.
61. For the few examples of belligerent warships transiting neutral international straits, see
O'Connell, The Influence of Law on Sea Power 99 ff. (1975).
62. See the Swedish Ordinance of 1966, supra note 20, and the Danish Ordinance of 27
February 1976 concerning admittance of foreign warships and military aircraft (U.N.
ST/LEGSER.B/19, 142). The Swedish Ordinance was revised by the Ordinance of 17 June 1982
concerning Intervention by Swedish Defence Forces in the Event of Violations of Swedish
Territory in Peacetime and in Neutrality (Swedish Code of Statutes 1982:756). The restrictions
of the transit right of foreign warships and military aircraft does not apply in the Oresund, where
no prior notice is necessary. See also RAUCH, supra note 1 1, at 43 ff.
63. RAUCH, supra note 11, at 44. Rauch believes that "taken together, doctrine and State
practice would seem to justify the conclusion that if the littoral States are neutral, innocent
passage of belligerent warships through international straits in time of war may be interfered with
only in exceptional cases." See abo 2 OPPENHEIM, INTERNATIONAL LAW 696 (7th ed.,
Lauterpacht ed., 1963), who, by reference to an obiter dictum of the PCIJ in the Wimbledon case,
claims an unrestrictable right of transit passage. The PCIJ had mentioned "the general opinion
according to which, when an artificial waterway connecting two open seas has been permanently
dedicated to the use of the whole world, such waterway is assimilated to natural straits in the
sense that even the passage of a belligerent man-of-war does not compromise the neutrality of
the sovereign State under whose jurisdiction the waters in question lie." P.C.I.J. Ser. A., No. 1,
28. A more cautious approach is taken by Castren, who states, "Transit by belligerent warships
may probably not, however, be prevented in those straits connecting different parts of the high
seas where the territorial waters of one or several neutral coastal States meet." CASTREN, THE
Present Law of War and Neutrality 518 (1954).
64. In Article 1 7 of its draft (U.N. Doc. A/3 159), the International Law Commission (ILC)
had proposed the following wording: "There must be no suspension of the innocent passage of
286
Wolff Heintschel von Heinegg
foreign vessels through straits normally used for international navigation between two parts of
the high seas." Hence, in the final wording there is no longer a reference to the "normal use" for
international navigation.
65. See, inter alia, Alexander, International Straits, supra note 13, at 97 ff.; O'CONNELL,
INFLUENCE, supra note 61, at 103 ff.
66. 1 O'CONNELL, LAW OF THE SEA, supra note 29, at 317; KOH, supra note 29, at 27;
Reisman, supra note 29, at 59.
67. Note that the right of transit passage does not apply to internal waters within a strait
"except where the establishment of a straight baseline . . . has the effect of enclosing as internal
waters areas which had not previously been considered as such." LOS Convention, supra note 2,
art. 35 (a) . Although the legal status of internal waters within an international strait is of special
relevance for the Northeast and Northwest passages, the status of these sea areas is still unclear;
see the exchange of notes between the United States and the former USSR in DEPT. OF STATE,
LIMITS IN THE SEAS, No. 112, at 68 ff. (1992). See also Rothwell, The Canadian-US. Northwest
Passage Dispute: A Reassessment, 26 CORNELL INT'L L.J. 331 (1993).
Another open question is the legal status of the entries to an international strait if they are
completely overlapped by the littoral States' territorial seas. This is the case in the Strait of
Magellan and in the Fieagle Channel. It follows, however, from the object and purpose of the
right of transit passage that there also exists a right of passage and overflight that may not be
hampered or suspended. This is the position taken by the U.S. Department of State vis-a-vis
Chile and Argentina. See LIMITS IN THE SEAS, No. 112, supra, at 63.
68. LOS Convention, supra note 2, art. 38.1. For an analysis, see Young, The Evolution of a
Proposed New Navigation Rule: The "Duty Not to Impede," 17 J. MAR. L. & COM. 119 (1986).
69. LOS Convention, supra note 2, art. 39.1 (a-c).
70. Convention on the International Regulations for Preventing Collisions at Sea of 20
October 1972; International Convention for the Prevention of Pollution from Ships (MARPOL)
of 2 November 1973; International Convention for the Safety of Life at Sea (SOLAS) of
1 November 1974.
71. LOS Convention, supra note 2, art. 39.2(a). Note that State aircraft "will normally
comply with such safety measures." Id., art. 39.3(a).
72. Id., art. 41.1.
73. Id., art. 42.2.
74. Bryde, Militdrische und sicherheitspolitische Implikationen der neuen Seerechtskonvention, in
DAS NEUE SEERECHT 151, 176 (Delbriick ed., 1984).
75. See, inter alia, ROACH & SMITH, EXCESSIVE MARITIME CLAIMS 177 ff. (66
International Law Studies, 1994) ; MUNCH, DIE REGIME INTERNATIONALER MEERENGEN VOR
DEM HINTERGRUND DER DRITTEN UN-SEERECHTSKONFERENZ 127 ff. (1982) (on the
customary character of the provisions).
76. Alexander, supra note 13, at 91; RAUCH, supra note 1 1, at 48; Robertson, supra note 28,
at 843 ff; Moore, supra note 27, at 95; Clove, supra note 39, at 108 ff.; Burke, supra note 39, at
193; Bryde, supra note 74, at 176 f., 182 ff; MUNCH, supra note 75, at 111 ff.
77. Alexander, International Straits, supra note 13, at 93; RAUCH, PROTOCOL
ADDITIONAL, supra note 11, at 45 ff; ROBERTSON, supra note 14, at 21 f.; Dinstein, supra
note 37, at 19 f.; MUNCH, supra note 75, at 44; Harlow, The Law of Neutrality at Sea for the 80's
andBeyond, 3 UCLA PACIFIC BASIN L.J. 42, 50 (1984) ; Grunawalt, Belligerent and Neutral Rights
in Straits and Archipelagos, in THE LAW OF THE SEA: WHAT LIES AHEAD? 137 (Clingan ed.,
1988); Ronzitti, Passage, supra note 38, at 366 ff. See also para. 29 of the San Remo Manual:
"Neutral States may not suspend, hamper, or otherwise impede the right of transit passage
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The Law of Naval Warfare and International Straits
San Remo Manual on International Law Applicable to Armed Conflicts at Sea ,
para. 29 (Doswald-Beck ed., 1995). Only Lowe seems to have doubts as regards the validity of
the right of transit passage during armed conflict. Lowe, supra note 39, at 123.
78. "Customary international law as reflected in the 1982 Law of the Sea Convention
provides that belligerent and neutral surface ships, submarines, and aircraft have a right of transit
passage through, over, and under all straits used for international navigation. Neutral nations
cannot suspend, hamper, or otherwise impede this right of transit passage through international
straits." NWP 1-14M, supra note 9 § 7.3.5. "The airspace above neutral international straits . . .
remains open at all times to belligerent aircraft, including armed military aircraft, engaged in
transit . . . passage." Id., § 7.3.7.
79. "Warships and military aircraft of a belligerent state may exercise the right of transit
passage, that is, of essentially unimpeded passage or overflight . . . through certain straits where
the transit passage applies." CANADIAN DRAFT MANUAL, supra note 46, § 151 1.2.
80. "While transit passage through international straits . . . include Is] the right of overflight
and the right of passage in submerged mode." ZDv 15/2, supra note 34, § 1126.
81. In the Danish background paper, supra note 35, the authors consider the legal status
unclear. It must be kept in mind, however, that that paper was written in 1978. Moreover, it is
made clear that "in the case of international straits the legality of a minefield will presumably
depend on whether passage of the straits by the belligerents is 'innocent' in relation to the peace,
order and security of the coastal State."
82. Harlow, supra note 77, at 50.
83. RAUCH, supra note 1 1, at 46.
84. NWP 1-14M, supra note 9, § 7.3.5. "The rights of transit passage . . . applicable to
international straits ... in peacetime continue to apply in times of armed conflict. The laws and
regulations of States bordering straits . . . relating to transit passage . . . adopted in accordance
with general international law remain applicable." SAN REMO MANUAL, supra note 77, para. 27.
85. LOS Convention, supra note 2, art. 40. See also, Alexander, supra note 13, at 93.
86. "A belligerent in transit passage through, under and over a neutral international strait
... is required to proceed without delay, to refrain from the threat or use of force against the
territorial integrity or political independence of the neutral littoral . . . State, or in any other
manner inconsistent with the purposes of the Charter of the United Nations, and otherwise
refrain from any hostile actions or other activities not incident to their transit." SAN REMO
MANUAL, supra note 77, para. 30. See also, Ronzitti, supra note 38, at 369 f.
87. SAN REMO MANUAL, supra note 77, paras. 15-17; NWP 1-14M, supra note 9, § 7.3.5;
ZDv 15/2, supra note 34, § 1 1 18 ff. For the Egyptian action taken in the strait of Bab al Mandab,
see O'CONNELL, supra note 61, at 101 ff.
88. Alexander, supra note 13, at 93.
89. Hence, there is no difference with the applicable peacetime rule. In view of the
vulnerability of surfaced submarines, it would be unrealistic to prohibit submerged transit.
Moreover, the neutral State is thus not obliged to monitor the strait, which would necessitate the
use of expensive equipment. See Harlow, supra note 77, at 51 (1984) ; Ronzitti, supra note 38, at
370 ff.
90. Canadian Draft Manual, supra note 46, § 1511.2.
91. NWP 1-14M, supra note 9, §7.3.5.
92. R,§ 7.3.7.1.
93. "Belligerents passing through, under and over neutral straits ... are permitted to take
defensive measures consistent with their security, including launching and recovery of aircraft,
288
Wolff Heintschel von Heinegg
screen formation steaming, and acoustic and electronic surveillance." SAN REMO MANUAL,
supra note 77, para. 30.
94- This may also be based upon the judgement of the ICJ in the Corfu Channel Case,
because the Court did not consider the transit of British warships, which had been in a state of
readiness, contrary to international law. 1949 ICJ Rep. 1 ff. See also, Harlow, supra note 77, at 51:
Because straits are natural "choke points," no naval commander can pass through without
being prepared to respond to hostile action. In the regime of transit passage, the concept
of peacetime transit in the "normal mode" includes the use of routine defensive measures
such as air and surface search radar, and sonar. In wartime, the use of such defensive
measures, which do not threaten the coastal state or its resource interests, is made even
more necessary by the heightened potential for imminent attack. Attempts by neutrality
laws to restrict such measures would be highly unrealistic and possibly counterproductive
since they could breed disrespect for the laws in general.
95. For example, common Article 8.2 of the 1938 Stockholm Declaration, supra note 57,
provides that "[a]ircraft carried on board belligerent warships shall not leave such vessels while
in . . . territorial waters." There is no indication that this rule is not to apply in international
straits.
96. See O'CONNELL, supra note 61, at 103 ff.
97. See also SAN REMO MANUAL, supra note 77, para. 30. "Belligerents in transit . . .
passage may not, however, conduct offensive operations against enemy forces, nor use such
neutral waters as a place of sanctuary or as a base of operations."
98. SAN REMO MANUAL, supra note 77, explanation of para. 30.1.
99. RAUCH, supra note 11, at 49. The differences between international straits where the
right of transit passage applies and those where it does not apply are ignored by Ronzitti. See, e.g.,
Passage, supra note 38, at 363 ff.
100. LOS Convention, supra note 2, art. 45. See Alexander, International Straits, supra note
13, at 99, 103.
101. For example, Finland still claims a territorial sea of four nautical miles in breadth. See
Law No. 463 of 18 August 1956; LAW OF THE SEA BULLETIN 29, No. 2, March 1985. Therefore,
in the Gulf of Finland there remains an open corridor. The example given by Alexander
(International Straits, supra note 13, at 100) concerning the Bass Strait between Australia and
Tasmania is not valid any longer; on 20 November 1990 Australia extended its territorial sea
from three to twelve nautical miles. See the Statement by the Permanent Representative of
Australia to the UN of 29 November 1990, reprinted in LAW OF THE SEA BULLETIN 8, No. 18,
June 1991.
102. Alexander, supra note 13, at 100.
103. RAUCH, supra note 11, at 47 f.; Alexander, supra note 13, at 99 f.
104. This is the case if the breadth of the remaining corridor is not sufficient for the safety of
navigation. An example given by Alexander (id. at 100) is the Bahamas. If the Bahamas
extended the territorial sea to twelve nautical miles, the breadth of the remaining corridor in the
Providence Channel would measure 0.25 nautical miles. However, IMO requires a breadth of
three nautical miles in order to guarantee as safe a passage as possible.
105. RAUCH, supra note 1 1 , at 48. Rauch also refers to strategic submarines, which might be
unable to keep to the corridor simply because it is not deep enough.
106. Id. at 48.
107. The Strait of Messina between the Italian mainland and Sicily has a breadth of two
nautical miles. For the Italian position during the Conference, see the statement by the Italian
delegate reprinted in UNCLOS III, Off. Rec. 1 30. See also MUNCH, MEERENGEN, supra note 81 .
289
The Law of Naval Warfare and International Straits
108. Italy was supported by the British delegation. See UNCLOS, II Off. Rec, Vol. 125.
According to the British view, the following straits fulfil the conditions of Article 38.1., LOS
Convention: the Pentland Firth south of the Orkney Islands, and the passage between Cornwall
and the Stilly Islands. Hansard, 484 H.L., Feb. 5, col. 382.
109. For further examples (like Messina), see Alexander, supra note 13, at 101.
110. As of 3 April 1985, Italy has subjected international navigation to a number of
restrictions. Oil tankers of more than ten thousand tons may no longer transit the strait. Oil
tankers of more than five thousand tons and all other ships of more than ten thousand tons are
assigned to compulsory piloting. The United States, by a diplomatic note of April 5, 1985, has
emphasized that it considers these measures only preliminary in character and not applicable to
warships; LIMITS IN THE SEAS, No. 112, supra note 67, at 68.
111. This provision has its origin in corresponding endeavours by Denmark, Finland, and
Turkey. See UNCLOS, III, Off. Rec. 124 L 132 f.
112. In Article V, para. 2, of the Egyptian- Israeli Peace Treaty of March 26, 1979, reprinted, in
The Arab-Israel Conflict and its Resolution: Selected Documents 218 ff.
(Lapidoth & Hirsch eds., 1992) , the two States have agreed as follows: "The Parties consider the
Strait of Tiran and the Gulf of Aqaba to be international waterways open to all nations for
unimpeded and non-suspendable freedom of navigation and overflight. The Parties will respect
each other's right to navigation and overflight for access to either country through the Strait of
Tiran and the Gulf of Aqaba." While in view of the date of signature, that treaty will hardly
qualify as a "long-standing international convention," it is declaratory of the right of transit
passage as laid down in the LOS Convention. See also MUNCH, MEERENGEN, supra note 75, at
53; Lapidoth, The Strait of Tiran, the Gulf of Aqaba, and the 1 979 Treaty of Peace between Egypt and
Israel, 77 AM J. INPLL. 99 (1983). A more cautious view is taken by Alexander, supra note 13, at
102. See also Fink, The Gulf of Aqaba and the Strait of Tiran: The Practice of "Freedom of
Navigation" after the Egyptian-Israeli Peace Treaty, 42 NAVAL L. REV. 121 (1995).
113. See Moore, supra note 27, at 1 1 1 (1980) ; Alexander, supra note 13, at 101 ff.; Barabolja
in 1 MODERNES SEEVOLKERRECHT 230 (1978); ROACH & SMITH, supra note 75, at 177 ff.
114. Apart from the sources cited in note 113, see RAUCH, supra note 1 1 , at 50; LIMITS IN
THE SEAS, No. 112, supra note 67, at 65. There is good reason to believe that the delegates to
UNCLOS III had these straits in mind.
115. Reprinted in THE LAW OF NAVAL WARFARE, supra note 1 1, at 437. For an analysis, see
Vignes, Commentary on the 1 936 Montreux Convention, id. at 468, 472 ff.; MUNCH, supra note 75,
at45ff.
116. Arts. 2-5. However, if Turkey is a belligerent, the Turkish Straits remain open for
neutral merchant vessels only — which have to travel by daytime, must respect the sealanes
designated by the Turkish authorities (art. 5.2), and are subjected to compulsory pilotage
(art. 6).
117. With regard to the passage of the Kiev in 1976, see Knight, The Kiev and the Turkish
Straits, 71 AM. J. INTL L. 125 (1977) ; MUNCH, supra note 75, at 47 ff. For State practice during
World War II, see WHITEMAN, supra note 55, at 277 ff.
118. For States bordering the Straits, the time limit is nine days; for all other States it is
fifteen days (art. 13).
119. If Turkey is a belligerent, art. 20 applies. For the wording, see supra, text following note
10.
120. Art. 19.2. Note, however, that this does not apply if, under the Covenant of the League
of Nations or another pact of mutual assistance concluded within the League's framework, there
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Wolff Heintschel von Heinegg
exist special obligations for Turkey. This presupposes that the State whose warships are to transit
the Straits is the victim of an act of aggression.
121. Martens, XVI NOUVEAU RECEUIL GENERAL 491 (1887).
122. Reprinted in LAW OF THE SEA BULLETIN, No. 4, Feb. 1985, at 50.
123. That view is taken by RAUCH, supra note 1 1, at 52.
124. Hence, Munch in his analysis of the Treaty of 1881 comes to the conclusion that that
treaty is a typical "long-standing convention in the sense of Article 35(c) UNCLOS." MUNCH,
supra note 75, at 53.
125. See the references in LIMITS IN THE SEAS, No. 1 12, supra note 67, at 67; ROACH &
SMITH, supra note 75, at 194. Seealso note 36 to § 2.3.3.1 of the annotated version of NWP 9, the
predecessor of NWP 1-14M.
126. The same position was taken by the U.S. Secretary of State in a statement of 21
December 1984 (reprinted in LIMITS IN THE SEAS, No. 112, supra note 67, at 67) :
This long-standing guarantee of free navigation for all vessels has been amply reinforced
by practice, including practice recognizing the right of aircraft to overfly. . . . Essentially,
the USG position would be that the 1881 Treaty and over a century of practice have
imbued the Strait of Magellan with a unique regime of free navigation, including the right
of overflight. That regime has been specifically recognized and reaffirmed by both
Argentina and Chile in the Beagle Channel Treaty. Hence, the United States and other
States may continue to exercise navigational and overflight rights and freedoms in
accordance with this long-standing practice.
127. London Declaration by France and the United Kingdom concerning Egypt and
Morocco, art. VII, Apr. 8, 1904, reprinted in MARTENS, XXXII NOUVEAU RECEUIL GENERAL 18
(1905). Spain acceded on Oct. 3, 1904. Franco-Spanish Declaration of Mutual Assistance in
Mediterranean Affairs, May 16, 1907, 204 PARRY'S T.S. 353. Anglo-Spanish Declaration of
Mutual Assistance in Mediterranean Affairs, May 16, 1907, id. at 179. Franco-Spanish Accord
concerning Morocco, art. 6, Nov. 27, 1912, 217 PARRY'S T.S. 288. Sometimes the Treaty of
Utrecht of 13 July 1713, by which Philip V ceded Gibraltar to England, is referred to. However,
art. 10 does not regulate the high seas corridor between Gibraltar and North Africa. Still, Spain
maintains that the provisions of the LOS Convention on straits do not apply to that sea area.
Upon signature, Spain declared that "[tjhe Spanish Government, upon signing this Convention,
declares that this act cannot be interpreted as recognition of any rights or situations relating to
the maritime spaces of Gibraltar which are not included in article 10 of the Treaty of Utrecht of
13 July 1713 between the Spanish and British Crowns," reprinted in STATUS, supra note 32, at 25.
128. See TRUVER, THE STRAIT OF GIBRALTAR AND THE MEDITERRANEAN 179 (1980);
Roach & Smith, supra note 75, at 185 ff.
129. See the references in Alexander, supra note 13, at 102. See also Saenz de Santa & Paz,
Spain and the Law of the Sea— Selected Problems, 32 ARCHIV DES VOLKERRECHTS 202 (1994).
When signing the LOS Convention, Spain declared: "It is the Spanish Government's
interpretation that the regime established in part III of the Convention is compatible with the
right of the coastal State to issue and apply its own air regulations in the air space of the straits
used for international navigation so long as this does not impede the transit passage of aircraft"
(supra note 1 27) . According to the Spanish position, this recognition of the right of overflight is
without prejudice the to legal status of the Strait of Gibraltar because Spain has made clear that
its signature does not affect "the maritime spaces of Gibraltar."
130. Alexander, International Straits, supra note 13, at 102; O'CONNELL, supra note 61, at 98.
131. Ibid.
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The Law of Naval Warfare and International Straits
132. See RAUCH, supra note 1 1, at 52. See also MUNCH, supra note 75, at 52, who considers
the treaties obsolete.
133. MARTENS, NOUVEAU RECEUIL GENERAL, serie I, tome XVI, partie II, 345 ff. The
following States and entities were parties to that treaty: Austria, Belgium, Denmark, France,
Hannover, the Cites of the Hanse, Mecklenburg-Schwerin, the Netherlands, Oldenburg,
Prussia, Russia, Sweden-Norway, and the United Kingdom.
134- U.S. -Danish Convention on Discontinuance of Sound Dues, 1 1 Stat. 719, T.S. 67.
135. During the deliberations on the LOS Convention, the Danish delegate declared that
"after negotiations with all interested parties his delegation was satisfied that Art. 35 (c) applied
to the specific regime in the Danish straits." U.N. Doc. A/CONF.62/SR. 138, at 35 (1980). See
also U.N. Doc. A/CONF.62/SR. 163, at 10 (1982). During the eleventh meeting of the Second
Committee the Danish delegate stated "that some straits, such as the Danish straits leading to
the Baltic Sea, had never been subject to the right of free passage but had been under a special
regime serving the interests of both the coastal State and the international community; such a
type of arrangement should remain in effect." UNCLOS III, Off. Rec. 124. For the Order of the
ICJ of 29 July 1991 on Provisional Measures, see Gray, Passage through the Great Belt (Finland v.
Denmark), Provisional Measures, Order of July 29, 1991, 42 INPL & COMP. L.Q. 705 (1993);
Koskenniemi, L'affaire du passage par le Grand Belt, 38 ANNUAIRE FRANQAIS DE DROIT
INTERNATIONAL 905 (1992).
136. The former USSR accepted the Danish regulations because it considered the Baltic
Straits excluded from the regime of transit passage by the Treaty of 1857. See also the references
in ROACH & SMITH, supra note 75, at 215 ff.
137. See note 36 to § 2.3.3.1, NWP 1-14M, supra note 9; MUNCH, supra note 75, at 50.
138. Rauch, DIE SOWJETUNION UND DIE ENTWICKLUNG DES SEEVOLKERRECHTS 81 ff.,
289 ff., 305 (1982). A more cautious view is taken by Bryde, supra note 74, at 187. For the
contrary view, see MUNCH, MEERENGEN, supra note 75, at 51.
139. Supra text to notes 55 ff. (for the practice of Scandinavian States).
140. Ordinance Concerning Intervention by Swedish Defence Forces in the Event of
Violations of Swedish Territory in Peacetime and in Neutrality, supra notes 20 and 62. See also
Bring, supra note 58, at 841.
141. When signing the LOS Convention, the Swedish delegate declared:
It is the understanding of the Government of Sweden that the exception from the transit
passage regime in straits provided for in article 35 (c) of the Convention is applicable to
the strait between Sweden and Denmark (Oresund) as well as to the strait between
Sweden and Finland (the Aland Islands). Since in both those straits the passage is
regulated in whole or in part by long-standing international conventions in force, the
present legal regime in the two straits will remain unchanged after the entry into force of
the Convention.
Reprinted in STATUS, supra note 32, at 26.
142. Id.
143. See the declaration of the Finnish delegate during UNCLOS III, U.N. Doc.
A/CONF.62/SR.135 (1980), at 8.
144. RAUCH, supra note 1 1, at 52. For further references, see ROACH & SMITH, supra note
75, at 182 ff.
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